*1 RENEE GRIFFITH, Appellant, Plaintiff and BUTTE SCHOOL DISTRICT NO. 1, CHARLES UGGETTI and JOHN METZ, Appellees.
Defendants
No. DA 10-0109.
September 14,
Submitted on Briefs
2010.
Decided November
2010.
JUSTICE LEAPHART dissented. For Appellant: O’Connor, William (argued), J. II & O’Connor O’Connor, PC, Billings.
For Appellees: Silk, A. Tony Koenig Debra C. (argued), Association, Montana School Boards Helena.
JUSTICE COTTER the Opinion delivered of the Court. (Griffith) Renee Griffith appeals from an order entered District, Thirteenth Judicial County, Yellowstone granting summary (School judgment in favor of Butte District), School District No. 1 (Metz). Uggetti Charles (Uggetti), and John Metz She appeals District Court’s conclusion that her claims were barred by the Montana Rights argues Human Act and the court finding erred in the School District’s action did not violate her to free and to freedom of religion under the United States and Montana Constitutions. We *3 reverse and remand.
ISSUES We consider the following ¶2 issues: 1. Did the District ruling exclusivity
¶3 Court err in provision the Montana Human Rights Act barred Griffith’s claims for violation of her state and federal rights constitutional speech to free freedom of religion? 2. Did the District Court err in concluding
¶4 that the School permit District’s refusal to personal Griffith to state her religious during views valedictory her did speech not violate Griffith’s state and federal speech to free and freedom of religion?
FACTUAL AND PROCEDURAL BACKGROUND The parties do not dispute ¶5 the material During facts. year, 2007-2008 academic Griffith was a senior at High Butte School (BHS), a which is school in the School District. Metz the principal was Uggetti of BHS and superintendent was the of the School District. Griffith, along classmates, with several achieved the distinction of being named valedictorians of the class of and was invited to ceremony. Griffith was one of May graduation
speak at the to a speech. desire deliver expressed who a the valedictorians guidelines written for School District nor BHS had Neither the valedictory addressing speeches. the content speakers student good in “appropriate, had to be taste were told their remarks students closing high [their] to and should be relevant grammar, style topic of the was left each years.” The school valedictorians, Griffith was asked Since there were several speaker. Together, student, Ethan Keeler. jointly her remarks with another give fashion give speech alternating a in an and Keeler decided to they high learned in school. topic on the of what intended to deliver at the Among remarks Griffith wrote and following graduation ceremony, passage: she included failure past years, through four even persevere I learned to these I can discouragement, my I had to stand for convictions. when let keep far I didn’t fear say my regrets are few and between. me. I sharing joy and His those around me from Christ with day each hope, encourage people to treat impart learned to my did grades I or for what I gift. a learned not to be known for my faith and morals and during school, being for committed to but a from God with being purpose who lived a someone with passionate love Him. convey school accurately high experience her
Griffith felt she could not accomplishments, for her mentioning these motivations without actions, purpose. and life ceremony, graduation the student days prior In the to the Riordan, speech coach asked Stephen met
speakers with During their second speeches. the students their school to assist Uggetti relayed message Superintendent from meeting, Riordan in to ‘God”and ‘Christ” Griffith-she must omit the references graduation permitted were not religious references because speeches. and her father days graduation ceremony, Griffith Two before the copy of the School District’s Uggetti, gave who them
met with not be reiterated that references would policies. Uggetti graduation policies The two relate speeches. allowed in students’ case, and that are issue this speeches, ceremonies and *4 and Policies Nos. 2333 2332. are School District Policy No. 2333 is found under text of School District The relevant Speeches heading Commencement Organization the and Content for states: and any
The school administration presentation shall not censor or content, require any may but advise the participants about appropriate language for the audience and Students occasion. may selected participate address, poem, to choose to deliver an reading, song, presentation, musical or prayer, any other pronouncement choosing. of their policy requires graduation
This also the printed ceremony program (hereinafter “Disclaimer”): following include the paragraphs the Any presentation by participants graduation exercises is the of private expression the participants individual and does not of any District, Board, necessarily position the its reflect official of administration, employees, any or or indicate the views other graduates. The recognizes graduation Board that at throughout time and the process, course educational there will be instances where values, religious religious practices, religious persons will have some interaction with the public schools and The students. Board, however, does religion, recognizes not endorse but individuals express to have the their freedom views, political, religious individual or social this is the essence for education. heading Ceremonies, Under the of Graduation the pertinent section of Policy School says: District No. 2332
Graduation is an important event for students and their families. In order to assure appropriateness dignity occasion, ofthe the District sponsors pays graduation ceremonies and retains ultimate their control over structure and content. prefer District beliefs some students over the others, nonbelievers,
beliefs of coerce or dissenters any communicate religion. endorsement of The School practice Policy District contends that its is to follow No. 2332 and not though No. even are policies both current and Thus, remain in prints effect. while the School District the Disclaimer set out in Policy graduation program, requires No. 2333 it also students to their submit remarks for review prior ceremony. Contrary language Policy to the written non-censorship No. it practice is the of the School District prohibit any speeches. references kind in student Consequently, day before graduation ceremony, Uggetti one following changes
summoned Griffith to his office and proposed *5 her remarks: through years, four even failure past to these persevere
I learned I can my I had to stand for convictions. discouragement, when keep I let fear my regrets and far between. didn’t say that are few I learned to my faith with those around me. sharing me from gift. I encourage day treat each as a hope, people to to impart during for I did my grades or what learned not to be known being morals and school, being my to faith and but for committed my derived from faith and purpose who lived with someone added.) of mankind. (Emphasis based on a love change original her she would not Uggetti informed Griffith ¶13 had not of what she speak she could because she believed remarks God. Uggetti Christ and high acknowledging in without learned school ultimately charge of the School that, while he was told Griffith concerning judgment Principal Metz District, defer to the he would He speak. repeated, or not Griffith would be allowed whether speak unless she however, unlikely it she would be allowed to that was religious references. removed the Keeler aside Metz called Griffith and graduation practice, At the
¶14 religious remove the references from Griffith she had to either and told responded that she would speak or not at all. Griffith her remarks change speech. her 2333, printed Disclaimer Policy with No. was In accordance graduation During May 29, program. 2008 BHS gave valedictory partner. with another
ceremony, Keeler his would not remove the she permitted speak was not because Griffith her speech. references from Proceedings Rights Bureau Administrative The Human 2008, timely complaint 23, filed a with July On Griffith (HRB). Metz, alleged Uggetti, She Rights Human Bureau Montana her against discriminated her in education the SchoolDistrict had Human religion in of the Montana on of creed or violation the basis (MHRA), §49-2-307, MCA. Pursuant Rights specifically §49-2- Act investigation an 504(1),MCA, investigator conducted informal an HRB on her in education based of discrimination allegations of Griffith’s parties, from all of the religion. investigator The took statements documents, and interviewed witnesses. pertinent reviewed the HRB Investigative Report a Final investigator filed unlawful recommending finding ‘ho cause believe On complaint.” as set forth in discrimination occurred from the HRB two-page letter January 20, received entitled ‘Notice of Dismissal and Right Notice of to File Civil Action in District Court.” Proceedings
The District Court Upon receipt of the notice of from the HRB dismissal §49-2-511, pursuant MCA, complaint Griffith filed a timely in the District, Thirteenth County. Judicial Yellowstone Griffith claimed the District, Uggetti, School and Metz violated state and federal to free religion. and freedom of Her (I) counts, complaint alleged, in six that the defendants violated: (II) MHRA, chapter MCA; Title the Governmental Code of Fair (III) Practices, 3, MCA;1 chapter II, Title Article Section 5 of the (IV) Constitution; Montana II, Article Section 7 of the Montana (V) *6 Constitution; Amendment the First to the United States (VI) Constitution; and the Fourteenth Amendment United States complaint Constitution. Griffith’s prayed for nominal and compensatory damages, attorney as well as fees. On summary cross-motions for judgment,
¶19 the District Court found in favor of the School court exclusivity District. The determined the provision of the MHRA because, barred Counts III through VI while these pled actions, claims as constitutional gravamen tort I, ofthe claims MHRA, was discrimination. As to of Count violation the the District Court found the School District did First not violate the §49-2-307(1), to the MCA, Amendment United States Constitution or prohibited delivering when it Griffith from her unedited remarks. court concluded that practice excluding the School District’s expression of personal religious in student speeches views was against Furthermore, reasonable basis for its action Griffith. since the practice applied evenly, any was and with the intent to preclude implied District, endorsement of views the School court held the prohibiting School District’s decision Griffith from speaking did not violate either the Establishment Clause the First §49-2-307(1), Amendment to the United States Constitution MCA. Griffith appeals granting summary ¶20 the District Court’s order judgment District, in favor of the Uggetti, School and Metz.
STANDARD OF REVIEW We summary novo, review orders of de judgment applying employed by same criteria the district court pursuant to M. R. Civ. P. 1 appeal ruling issue, Griffith did not the District Court’s on this therefore we Opinion. decline to address it in this
200 402, 229 State, 64, 84, 355 Mont. Montana, 2010 MT LLC v. ¶
56. PPL ‘the pleadings, when Summary judgment appropriate 421. P.3d file, and admissions on interrogatories, answers depositions, affidavits, genuine no issue any, if that there is together with the show is entitled to a moving party and that the any material fact 56(c). M. P. When the material a matter of law.” R. Civ. judgment as conclusions oflaw for we review a district court’s undisputed, facts are 451, MT Dept., 2009 ¶ v. Cascade Co. correctness. Edwards Sheriff’s 307, P.3d Mont. 223 893.
DISCUSSION are moot because argues first Griffith’s claims The SchoolDistrict sought monetary has not graduated from BHS and Griffith has to vindicate her constitutional asserts that she seeks damages. Griffith damages in complaint for nominal original and her claim moot. becoming the action from prevents issue which must resolve before ‘Mootness is a threshold we In the Matter addressing dispute.” merits of the substantive 319, 174 P.3d 351, 30, 340 of D.V., MT Mont. Mental Health ¶ News, Havre, 215, 31, MT Daily City LLC Havre (quoting 864). when, A is moot due to the 142 P.3d matter 333 Mont. time, present passage an the issue ceases occurrence of event or grant cannot effective relief. Id. justiciable controversy or the court damages for nominal prayer complaint in her from rights prevents this action of her constitutional violation Dist., 526 F.3d 425-26 v. Clark Co. Sch. becoming moot. Jacobs 2008) (9th Angeles, (citing Co. Los 272 F.3d Bernhardt v. Cir. 2002)). (9th a violation of their prove Plaintiffs who Cir. *7 damages as matter must be awarded nominal rights constitutional 2005) (9th 936, Connell, (citing 944 Cir. Cummings v. F.3d of law. (9th 784, 2002)); Cir. Diego, 285 F.3d 794-95 Schneider v. Co. San of 1042, 247, 266, 98 S. Ct. 1053-54 Carey Piphus, v. 435 U.S. see also (1978). damages; her clearly prays nominal complaint As for Griffith’s the result, the merits of substantive claim is not moot. As we address presented appeal.2 issues on the ruling the Court err in Issue One. Did District parties exception the doctrine that exists addressed the to evade review. Because mootness also yet may repetition we find the capable the issue is of
when
prayer
mootness,
unnecessary
finding
damages precludes
it is
to reach this
of
for
question.
exclusivity provision
the
Rights
of Montana Human
Act barred
Griffith’s
claims
of
violation
state
and federal
rights
to free
religion?
and freedom of
“We determine the
substantive
parties
between the
according to the law in
at the
injury.”
effect
date of
Boettcher Mont.
Fund,
Guaranty
69,
14,
393,
2007 MT
336 Mont.
MHRA’s provisions, as amended 2007. Since parties neither the nor acknowledged the District Court amendments, addressed the Legislature’s Montana we review salient MHRAprovisions significant and note the changes made Legislature. apply We then the correct law the facts case. this
A. The 2007 amendments the MHRA (HB 76) In Legislature the Montana enacted House Bill 76 to amend the MHRA and specifically address confusion courts and attorneys expressed regarding when and how a complaint alleging discrimination be brought could to district light courts in of the remedy exclusive provision of the MHRA. See Mont. H. &Bus. Lab. Comm., (Jan. Hearing 76,60th Minutes on the HB Leg., Reg. on Sess. 12,2007). During both the hearings, House and Senate sponsor HB Rep. McNutt, clearly expressed Walter that the intent of the 2007 amendments clarify was to the procedures. Id. Germane to this case are the clarifying amendments how a case that is initially brought *8 on court for trial can, to the district ultimately, proceed
to the HRB (2007), the 49-2-504, -512, MCA contain and -511 the merits. Sections procedures. significant new Legislature added 49-2-504(7)(b), MCA. The 2007 Section (7)(b) §49-2-504, then-existing MCA: to the
subsection (7)(b) reasonable cause finds that there no department If the occurred, it shall issue discrimination that unlawful believe department’s from the and dismiss the case notice of dismissal dismissal, receipt of a notice process. After administrative may: charging party
(i) filing objections process the administrative continue 49-2-511; in provide commission as the (ii) process administrative discontinue 49- in provided in district court as proceedings commence added.) (Emphasis 2-511. Prior 49-2-509, repealed was in 2007. MCA. This section Section (7) exclusivity provision that we subsection contained Saucier, 43-44, Med. Ctr. v. Deaconess in Vettel-Becker
interpreted ¶¶ 435, 177 P.3d Inc., 31-34, MT 341 Mont. Billings, ¶¶ Edwards, 69-75. ¶¶ 49-2-511, added as a new section MCA. This section was Section (3)(a), states: this case is subsection which in 2007. Relevant to -filing objections proceedings after informal Dismissal court. -action district -procedures (3)(a) has issued a notice days department after the Within 49-2-504(7)(b) 49-2-501(5)or or within 90 pursuant of dismissal affirming an order commission has issued days after the (2)(b) of to subsection pursuant notice of dismissal department’s a civil action section, may commence charging party this the case in the district relief on the merits of appropriate alleged occurred. If the violation in the district which court in the district fails to commence civil action charging party days agency the final decision has been within 90 after court issued, claim the same provide The court barred. addition, inmay In the court its described in 49-2-506. relief as attorney party reasonable fees prevailing discretion allow added.) (Emphasis costs. 49-2-512, a stand-alone This section became Section MCA. (1) exclusivity contains the same in 2007. While subsection
section (2) MCA, §49-2-509(7), codified subsections previously provision (3) and were added:
Filing in -compliance district court with administrative (1) procedures required. provisions of this chapter *9 establish the exclusive remedy constituting acts an alleged chapter violation of or chapter, including this acts may otherwise also constitute a violation of the discrimination II, provisions Article section of the Montana constitution or 49-1-102. A claim or request based upon may the acts not be by entertained a district court other than procedures the specified in chapter. this
(2) 49-2-501(5) In addition to dismissal under 49-2-504(7)(b), or department the shall dismiss a complaint if:
(a) the charging party keep fails to department the advised changes of address and the department finds that the failure has impeded the administrative or proceedings;
(b) a period elapsed months has from filing the of a complaint and neither the department nor the commission has held hearing pursuant a to 49-2-505 an hearing or informal pursuant However, to 49-2-511. department the or the may commission refuse to dismiss a complaint under this (2)(b) subsection if:
(i) days more than 30 have elapsed since service of notice hearing 49-2-505; under
(ii) the parties stipulated have to a reasonable extension ofthe timeframes; or
(iii) through a litigation party unsuccessfully has sought to prevent department the or the commission from conducting administrative proceedings on the complaint.
(3) days Within 90 after department the has a issued notice of (2), dismissal pursuant charging party may subsection the commence a civil action for appropriate relief on the merits of the case in the district court in the district in which alleged the violation occurred. If charging the party fails commence the civil days action in the district court within 90 after issued, dismissal has been the claim is barred. The court may provide the same relief as described in 49-2-506. In addition, may court its discretion prevailing party allow the added.) attorney reasonable fees and (Emphasis costs. Statutory
B. interpretation of the 2007 MHRA. The rules statutory construction are well-settled. Section 1-2-
101, MCA, commands that: statute, judge simply officeof the is construction of
In the or in substance contained is in terms and declare what ascertain has or to omit what therein, has been omitted not insert what particulars, provisions there are several inserted. Where been effect give to be as will is, possible, adopted if a construction such all. if legislature pursued is to be Additionally, intention of the ‘the required 1-2-102, MCA, interpretation and no further possible,” § unambiguous. clear and of the statute is plain language when Ct., 149, 38, 337 Mont. 2007 MT Eighteenth Jud. Dist. Miller (citations omitted). 162 P.3d -512, (2007), -511, MCA §49-5-504, language of plain 49-2-504(7)(b)(ii),MCA,clearly states unambiguous.3
clear and Section file party may complaint, charging once the HRB dismisses court, long party complies §49-2- in district so complaint ninety of the HRB’s MCA, complaint days and files the within that, MCA, §49-2-511(3)(a), clarifies Additionally, notice of dismissal. hold a trial on the merits of court must point, at this the district MCA, in 49-2-506, relief outlined provide § case *10 reading the plain This of awarding attorney fees and costs. addition to clarify the Legislature’s the intent to harmonious with statues is through takes the HRB a discrimination case procedural pathway process. MHRA, gravamen the the Given the 2007 substantive revisions Chance, Harrison v. commencing with
analysis which we relied upon (1990), through our decisions in P.2d 200 244 Mont. Vettel-Becker, necessary Saucier, is, mercifully, longer no andEdwards following in court filing suit district analyzing propriety of when may holdings their still be by of the HRB. We caution notice dismissal a claim viable, however, plaintiff in files those situations where a filing the district court without first “sounding in discrimination”in See receiving a notice of dismissal. Vettel- claim before the HRB and Becker, Edwards, “sounding If in discrimination” 75. a claim ¶ 37\ of accompanying an notice court absent brought to the district 49-2-512(1), MCA HRB, by from the it could be barred § dismissal (2007). otherwise, statutory Opinion subsequent in this all references Unless indicated during period MHRA, time which was in effect the 2007 of the are to version note, change the MHRA the 2007 and Of there was no in between to this case.
relevant versions. C. Griffith’s claims by are not barred the MHRA exclusivity provision statutory §§49-2-504, language -512, MCA, of -511 and
unambiguous. permit party The statutes take case to district court for a trial on the merits once the action is dismissed from the provision HRB. There is no a district essentially allows court to remand a case back to disagrees the HRB if it with the HRB and finds in complaint situation, sounds discrimination. In this 49-2- §§ 511(3)(a) -512(3), MCA, specifically may state the district court provide the same prevailing relief to the party as would have been in received process. administrative Accordingly, Griffith was entitled in trial district court
addressing claims, the merits all including ofher her discrimination allegations. complied §49-2-501,MCA, timely and filed a complaint with the Upon investigation, HRB. its concluding the HRB issued a notice of right dismissal and in court, to sue district in compliance language with the plain §49-2-504(7)(b), MCA. In dismissal, the notice the HRB outlined options
appealing decision, its including right to a trial on the merits district accurately court. The notice reflected and conveyed plain language ofthe It that, MHRA. stated pursuant §49-2-504(7),MCA, “the HRB a complaint shall dismiss party may and the charging file a civil action in the district court” if the HRB finds the complaint was unsupported by a preponderance of the evidence. The notice went on state, in letters, all capital ninety days that Griffith had from the date the notice of dismissal to file a complaint district court. The (1) notice ended reiterating: the case was dismissed from the (2) procedure; administrative the charging party may file an action in (3) court; district attorney district court award to the fees prevailing party. that, face,
¶39 We conclude on its the notice comports dismissal plain with the meaning the current MHRA. We defer to the HRB’s interpretation because it is reasonable and in accordance with the spirit and legislative intent of the amended statutes. Clark Fork *11 v. Dept. 407, 20, Coalition Mont. Envtl. Quality, 2008 MT ¶ 197, 197 Therefore, Mont. P.3d 482. we reverse the District Court and by hold that Griffith’s claims exclusivity were not barred provision of the MHRA. Issue Two. Did the concluding
¶40 District Court err in that the School District’s to permit refusal Griffith to state her personal during views her valedictory speech did not free rights to constitutional state and federal
violate Griffith’s religion? and freedom speech we appeal, merits of Griffith’s turning to the Before substantive
¶41 below, First, for the reasons set forth issues. preliminary address two as tort actions. We pled properly were Griffith’s claims allege did not discrimination the HRB that her claims agree with meaning of the MHRA. within the arguments that undeveloped Second, several parties present argument to present must reasoned to Parties
we decline consider. appropriate citations positions, supported their advance 12(f). so, caselaw to do our party P. When fails authority. App. M. R. arguments. issues or unsupported will not consider is well-settled. We 175, 53 McMahon, 198, 6, P.3d 311 Mont. 2002 MT Marriage re ¶ In on legal conduct research Moreover, job this Court’s “[i]t 1266. is not or to behalf, position, guess party’s] precise [a as to [a party’s] position.” support lend to that analysis develop legal Conservation, 1998 MT & Dept. ¶ v. Nat. Resources Johansen of P.2d 653 (citations Gomez, omitted); 39, 955 see also State 288 Mont. 219, 158 442. Mont. P.3d MT undeveloped argument a two-paragraph, presents Griffith II, speech under Article right her to free the School District violated The School District does Montana Constitution. Section 7 of the all, except at II, Section 7 ofthe Montana Constitution address Article under the right to free it did not violate Griffith’s to assert we parties; for the arguments not formulate provision. We will this issue further. decline consider therefore argument that the School Next, undeveloped an presents of the law right equal protection her constitutional District violated Constitution of the United States the Fourteenth Amendment under delivering from her prohibited the School District because group what identify does not valedictory speech. She unedited one,” issue, she claims to be “class at or whether classification is analysis. The equal protection of an preliminary step which is First Amendment merely portions its reiterates School District claim. addressing the equal protection arguments squarely without analysis to the fully-developed legal equal presents a party Neither Therefore, consider this issue we also decline to protection claim. further. addressed, for the reasons matters preliminary With those (1) herein, the School District violated hold:
discussed we United of the under the First Amendment right to freedom of *12 207 Constitution, entitling States her to relief under 42 U.S.C. 1983 § (2) (2006); the School right District did not violate Griffith’s II, of religion freedom under either Article Section of5 the Montana Constitution or the First Amendment of the United States Constitution.
A. The School District violated Griffith’s constitutional right to freedom of speech non-neutral, when imposed it viewpoint-based limitation on the content of her valedictory speech ‘It axiomatic government that the may regulate speech not
based on its or message substantive content it conveys.” Denke v. Shoemaker, 418, 47, 322, 198 2008 MT 347 Mont. P.3d 284 (quoting ¶ Rosenberger v.Rector & Virginia, 819, Visitors the Univ. 515 U.S. of 828, (1995)). 2510, 115 S. Ct. Viewpoint discrimination is “an egregious form of discrimination,” content government “the must abstain from regulating speech the specific motivating when ideology or opinion or perspective speaker of the is the rationale for the restriction.” Id. (quoting Rosenberger, 515 U.S. at at S. Ct. 2516). These basic principles constitutional law forbid the government from practicing viewpoint any discrimination in forum-public, public, limited or non-public. Rosenberger, 515 at U.S. 829-30, 115 S. atCt. 2516-17. free speech rights
¶47 Students’ in a school have setting not historically type turned on the forum created ceremony, or degree regulatory control school officials have in each of below, those various forums. As fully discussed more the extent of a right student’s to free speech case-by-case is determined aon basis, light in special circumstances a school environment. 49. questions regarding Because (public, forum limited public, Infra non-public) or part analysis have not formed ofthe speech in free cases arising environment, in the school the parties’ arguments asserting general First Amendment forum concerns are inapposite. The United Supreme States present Court’s approach to right
student’s
free
was first
articulated
Tinker v. Des
Community
Dist.,
Moines Indep.
Sch.
393 U.S.
commensurate with environment.” Hazelwood of the school special of the circumstances (1988) 260, 266, Kuhlmeier, 108 S. Ct. 484 U.S. Dist. v. Sch. 736). 506, 89 S. Ct. at School officials Tinker, 393 U.S. at (quoting school speech in the limitations on student impose viewpoint-based (1) speech will reasonably conclude the school officials setting unless of the substantially discipline disrupt work “materially and (2) 740; at the student’s Tinker, at 89 S. Ct school,” 393 U.S. reasonably activity may be school-sponsored in a expression *13 school,”Hazelwood, 484 U.S. ofthe imprimatur the “perceive[d]to bear (3) “reasonably can be 570; expression or Ct. at at 108 S. Morse, at 127 S. drug 551 U.S. illegal use.” promoting viewed as at 2629. Ct. case, Griffith’s we analytical framework to this Applying right to District Griffith’s the School violated
conclude
any of the three
not fall within
speech
this matter does
free
because
to
it
for school officials
permissible
in which
recognized situations
First,
limitation
speech.
on student
impose
viewpoint-based
Griffith’s
clearly inapplicable because
exception
Morse
illegal
valedictory
wholly
are
unrelated to
speech
references in her
that
Second,
to conclude
Griffith’s
it would be unreasonable
drug use.
materially and
religious views would
personal
brief mention of
ceremony,
indeed the School
and
substantially disrupt
graduation
Finally,
only exception
we address
argues
such.
District never
to
and
references God
passing
Griffith’s
argued by
partieswvhether
of the school.”
imprimatur
bear
perceived
Christ could ‘he
District to conclude that
it
for the School
We find
unreasonable
could be
personal religious beliefs
cursory references to her
Griffith’s
ceremony
aas
at the BHS
by those in attendance
viewed
end,
To that
we find both
the School District.
religious endorsement
v.
reliance on Cole
the School District’s
the District Court’s
2000)
(9th
District,
Cir.
228 F.3d
High
Union
School
Oroville
for the
District cite Cole
The District Court and
School
misplaced.
retained control over
the School District
proposition that because
Uggetti and Metz
permissible for
graduation ceremony, it was
District
presumably, the School
prevent,
censor
disagree.
We
the Establishment Clause.
running afoul of
brief,
Cole is
its
correctly recognizes
As the School District
School,
Cole,
High
at Oroville
factually
from this case.
senior
distinct
invocation,
sectarian,
proselytizing
to deliver a
attempted
Niemeyer,
senior,
another
to deliver a
attempted
valedictory speech
easily
that could
Cole,
be characterized as a sermon.
district’s
permit
refusal to
Cole and Niemeyer
give
their respective
speeches was reasonable because both the invocation and the
valedictory speech were sectarian and proselytizing,
is type
which a
is,
‘by definition,
reflect,
designed to
and even convert
others, to a particular religious
Cole,
viewpoint.”
could dissociated fact, explicitly School District District. In the of the School unambiguous Disclaimer by printing speech itself from Griffith’s “any Policy stating pursuant No. graduation program in each expression of private ... by participants presentation necessarily any official reflect and does not participants individual administration, or Board, employees, or District, its of the position point, More to the any graduates.” other indicate views any religious printed Disclaimer avows of the paragraph second then District and endorsed School by students expression their express ‘have the freedom to clarify that individuals goes on to views, for this is essence or political, social individual no likelihood circumstances, there is real these education.” Under valedictory speech would in her religious references passing Griffith’s as an endorsement of by any in attendance been construed have District. by the School religious views policies its own written School District violated Finally, the giving from her chosen prohibited it Griffith non-censorship when content for explicitly which addresses Policy No. remarks. not censor administration shall “theschool graduation speeches, states are that students who any content” and require or any presentation address, reading, “an poem, to deliver choose speak selected any prayer pronouncement other presentation, song, musical by requiring ignored policy this choosing.” The School District their her speech. and ‘Christ” from the words ‘God” Griffith to remove reasons, holding we reach narrow For the aforementioned hold that the School of this case. We particular facts based on speech under the First right to freedom of District violated impermissibly when it Constitution of the United States Amendment valedictory viewpoint based on the censored the content of expressed. she § 42 U.S.C. to relief under
B. is entitled Griffith District, entity, governmental because the School right to free constitutional violated her deprived federal School District Since find that we 42 U.S.C. relief under § is entitled seek right, she (§1983). rights, ‘is a source substantive ‘Section 1983 not itself vindicating federal elsewhere merely a method provides but ” 82, 32, MT 337 Mont. Sys. Univ. Jones Mont. conferred.’ *15 Oliver, 266, 271, 114S. Ct. 510 U.S. (quoting Albright v. P.3d 1247 155
211 (1994)). 807, 811 claim, To evaluate a step §1983 the first is to identify specific violation, federal constitutional and the step second is to determine whether the plaintiff officialswho violated a s constitutional acting were under the McDonald, color state law. Brown v. (citations 197, 12, 390, 165 omitted). 2007 MT 338 Mont. P.3d ¶ [6] Griffith satisfies the first part of the 1983 § analysis because her federal right speech, to free guaranteed by as Amendment, First was violated when she was prohibited from delivering her valedictory speech. Supra 57. We ¶ conclude that the part analysis second is satisfied as well. The School District is a 2-9-101(3) government entity. (5), Sections and During MCA. year, Metz, 2007-2008 academic Uggetti and employees of the District, School were acting capacities in their official as School superintendent District and BHS principal, respectively. Section 2-9- 101(2)(a), MCA. The constitutional violation Uggetti occurred when precluded Metz delivering Griffith from her chosen at the remarks graduation ceremony. It undisputed during this was done course and scope employment their as school officials. Because the District, School through Metz, of Uggetti actions violated her First Amendment right speech, to free Griffith is entitled to relief under her 1983 claim. § The District Court did not reach the question of whether
Uggetti individually-named and Metz as defendants, are individually against liable for their they actions Griffith. We conclude are they be should dismissed from 2-9-305(5), MCA, the action. Section serves as a complete holding bar to Uggetti and Metz individually liable it provides immunity because from suit individually-named performed defendants for actions within the course and scope Constr., employment. Kiely official’s See LLC City v. Lodge, Red 241, 88-89, MT 836; 312 Mont. 57 P.3d ¶¶ see also Germann (in Stephens, 2006 MT 332 Mont. P.3d 545 claim, granting immunity government § officials does not deprive plaintiffs remedy against of a government entity). All of allegations Metz, turn on performed by actions Uggetti and officials, as school scope the course and employment. their On remand, we instruct the Uggetti District Court to dismiss and Metz as pursuant §2-9-305(5), individual defendants MCA.
C. The School District did not violate Griffith’s state and right federal constitutional religion freedom of because it neither compelled violate the tenets of her religion important governmental nor denied her an benefit *16 infringed right on her to the School District argues that Griffith
¶61 II, 5 of the Article Section of religion of violation free exercise of the United States Amendment and the First Constitution Montana her unduly burdened School District She claims the Constitution. and saying from ‘God” her religious prohibited when it practice argues that District valedictory The School speech. in her ‘Christ” she beliefs mandate religious that her not demonstrated has speech, nor has valedictory in her expression religious personal include valedictory of a delivery religious proscribe beliefs that her she shown issue, agree we On this religious expression. of personal free speech the School District. on the infringes regulation impermissibly facially neutral “A unduly it neutrality if government requirement of Valley Sch. v.Montana religion.” Christian exercise of burdens the free (citing 554 Assoc., 41, 7, Mont. 86 P.3d MT 320 High ¶ Sch. 2004 (1972)). 1526, 1536 To Yoder, 205, 220, Ct. 406 U.S. 92 S. Wisconsin religion, the free exercise there is burden on whether a determine by the United States test established adopted the Thomas this Court Supreme Court: receipt important upon benefit of an the state conditions
Where it such a religious faith, or denies by a where proscribed conduct belief, thereby by religious of conduct mandated benefit because modify his an adherent on putting pressure substantial religion exists. beliefs, upon a burden violate his behavior Div., Sec. 450 U.S. Empl. Bd. Indiana v.Review (quoting Id. Thomas (1981)). 707, 717-18, 101 S. Ct. is to analysis the Thomas test under part The first valedictory speech at deliver a being permitted whether determine A ceremony important is an benefit. benefit high a school A. Dictionary (Bryan Black’s Law “advantage privilege.” anis 2004). recognized ed., ed., previously We have 8th West Garner important as an in extracurricular activities participation student School, Rel. Bartmess v. (citing State ex. Valley Christian ¶ benefit. (1986)). A 269, 275, 726 P.2d [sic], 223 Mont. Bd. Trustees honor valedictory speech is an a student’s invitation deliver academic success based on the student’s on the student conferred is privilege is a An academic award high school. throughout in extracurricular privilege participating to the certainly analogous valedictory an delivering speech a It activities. follows important benefit. on analysis focuses whether part of the Thomas The second conduct-expressing personal religious
Griffith’s her views in her valedictory speech-was “proscribed by religious faith” or “mandated a by religious School, Valley Nothing belief.” Christian 7. before this Court indicates either that religious Griffith’s faith she mandates personal include religious expressions in or that her faith proscribes delivering speech personal religious devoid of expression. personal belief that speak she could not without mention of during God Christ her speech is not equivalent a mandate religious her faith that she do so. Therefore, Griffith cannot meet the prong second on the
Thomas test because she cannot demonstrate SchoolDistrict’s request that she omit ‘God” and ‘Christ” from her incompatible with the tenets of her faith. Griffith has not shown that the School unduly District burdened her free exercise of religion when it conditioned the delivery valedictory speech on omitting ‘God”and ‘Christ” from the text. We hold the School District *17 did not violate Griffith’s right religion. to freedom of
D. may Griffith be entitled to attorney an award of fees because she is prevailing the party § under her 42 U.S.C. 1983 claim prevailing A in party
¶66 claim §1983 be awarded reasonable attorney 1988(b). fees as part of the costs pursuant to U.S.C. § Germann, power ¶ 37. While the of a court attorney to award fees 1988(b) under 42 discretionary, U.S.C. prevailing § “a plaintiff claim should ordinarily attorneys §1983 an recover fee special ‘unless ” circumstances unjust.’ would render such an Kiely, award 50¶ (citation omitted). A party is to “prevail considered actual when relief on plaintiffs] [the the merits materially legal claim alters the the relationship parties by between modifying the defendant’s behavior way directly that plaintiff.” benefits the Hobby, Farrar v. 506 U.S. (1992). 103, 111-12, 113 S. Ct. “Aplaintiff who wins nominal damages prevailing is a party under 1988” because an award of § damages, amount, in any changes the legal relationship in ofthe favor plaintiff ‘by forcing pay money [the the defendant to an amount of pay.” 112-13, defendant] otherwise would not at Id. 113 S. Ct. at 573-74. foregoing Pursuant to statutory caselaw,
¶67 the law may be entitled to attorney an award of fees since we conclude she is prevailing party. Supra 57. We instruct the District Court attorney law, so, determine whether to award fees under the if hearing conduct a on amount.
CONCLUSION claims were barred sum, Griffith’s constitutional we hold In ¶68 that the School District MHRA and ofthe exclusivity provisions by Furthermore, free right speech. First Amendment Griffith’s violated summary judgment in Griffith’s entry of remand for we reverse (1) for a determination We remand favor, Opinion. with this consistent is entitled under U.S.C. damages to which Griffith the amount of and, fees, (2) attorney if entitled to 1983; and of whether Griffith § the amount. so, hearing and determination for a this Opinion. remand consistent reverse and We NELSON, WHEAT, McGRATH, JUSTICES JUSTICE CHIEF RICE concur. MORRIS and dissenting. LEAPHART,
JUSTICE 2(a). so, Having done ofissue resolution dissent from the Court’s I 2(c). 2(b) and I not reach issues would time all, spends considerable I note that the Court First of are policies how the policies; written the School District’s discussing edits violated suggested District’s internally and how the inconsistent reversing due to the District’s If the Court were Policy No. 3222. suggested and the District’s policies school then policy, violation of "narrow However, self-described the Court’s be relevant. edits would that it violated policies, but violated holding”is not that school the sole focus Speech. Free Thus Right of the First Amendment proposed speech, the content of analysis should be: what was allowing in not right of free violate her and did District proposed? to deliver the valedictory speech contained two proposed Renee Griffith’s say proposed to Christ. She and one reference
references God let fear far I didn’t say my regrets are few and between. can T Joy around me.” His with those sharing Christ and keep me from added.) proselytizing, that this was not The Court holds (Emphasis *18 discrimination speak viewpoint allowing to was and that not disagree. I protected speech. free litmus an accurate proselytizing is Initially, question I whether Ninth Circuit Although violations. Establishment Clause test of Union speech in Cole v. Oroville impermissible to referred repeatedly (9th 2000), 1092, proselytizing, Cir. as Sch., 228 F.3d High 577, 587-90, Weisman, 112 S. Ct. 505 U.S. in Lee v. decisions Doe, 530 U.S. Sch. Dist. v. (1992), Indep. and Santa Fe 2655-57 (2002) religious that the make clear 305-310, 120 2276-79 S. Ct. in order to be or even sectarian proselytizing not need be involvement impermissible considered under the Establishment Clause. The in decidedly non-sectarian, invocation Lee was prayer as was the Fe, yet Santa both were found to violate Establishment Clause. As matter, legal proselytizing speech will certainly trigger almost mean, Establishment Clause however, concerns. This does not speech must be proselytizing to be found constitutionally impermissible. Sectarian religious short of references proselytizing Nonetheless, suffice. assuming arguendo that proselytizing is the proper test, proposed Griffith’s positive. tests seeking In to \share] Christ and Joy around”her, His with those seeking Griffith was to induce others to join religious faith. That is, proselytizing. she was Proselytizing speech “[is], by definition designed reflect, ... to to, and even convert others particular religious viewpoint ....” Doe v. Fe Indep. Dist., Santa Sch. (5th 1999). 168 F.3d Cir. To proselytize ‘It]o induce someone to convert to one’s religious own faith.” Heritage American (3rd 1992). Dictionary ed., Houghton Even if Griffith’s speech is perceived not proselytizing, it illustrates the impossibility ofhaving school administrators make such arbitrary determinations in the face of the Establishment Clause. inquiry critical under Santa Fe and Lee to determine if
religious activity at a major public school event constitutes impermissible participate coercion to is whether “a reasonable dissenter ... could believe that the group signified exercise her own participation or approval Lee, 593, 112 of it.” 505 U.S. at S. Ct. at 2658. The court here reasons that Griffith’s three references God or Christ were not proselytizing prefaced because she each reference with “I ‘hayfaith;”that learned” or she did not once use the term “we”or ‘Vou.” analysis This expressly overlooks that Griffith sought to “share Christ Joy and His with those around ‘Sharing” her.” is not a solitary Rather, endeavor. sharing enjoy is to experience jointly another or others. Heritage American Dictionary at 1659. ‘Those around her” were the hundreds ofpeople in the captive They audience. were the “we”and the the Court overlooks. Nou” case, In the present purpose by gathering be served this ceremony, was conduct not to share a sectarian religious experience. The a legitimate District had interest complying with the lending Establishment Clause its imprimatur expressions religious belief at the ceremony. Contrary to this conclusion, Court’s it was not religious viewpoint sought exclude, District any but sectarian content in
216
general. of her free in support a of cases cites number however, from a school cases, clearly distinguishable are
claim. These
v.
Chapel
Lamb’s
Ctr.
ceremony. Griffith cites
graduation
sponsored
2141,
393,
Dist.,
384,
113 Ct.
508 U.S.
S.
Union Free Sch.
Moriches
(1993),
permit
proposition that “aschool district could
for the
2147
of all views about
presentation
to be
for the
property
used
school
dealing
subject
rearing except those
and child
family issues
&
Rosenberger v. Rector
religious
perspective,”
from a
matter
819, 831,
2517
115 S. Ct.
of Va.,
Univ.
515 U.S.
Visitors of
a
not refuse to fund
university
a
could
(1995),
proposition
for the
religious
it
issues from a
addressed
because
publication
student
Sch.,
Cent.
Finally,
cites Good News Club
she
perspective.
Milford
2093, 2100-01(2001),for the
98, 107-09, 121 S.
proposition
Ct.
U.S.
public
where a
school
viewpoint discrimination
that “the Court found
after school
property
on school
nonreligious groups meet
permitted
doing
from
so.”
a Christian club
prohibited
but
clearly distinguishable. They each
are all
above decisions
The
Club uses school
voluntary
When a Christian
participation.
involve
attend;
is
public
meeting place,
required
no one is
property
a
Likewise,
is used for
property
when school
participate
free to
or not.
from a
family
rearing,
child
whether
issues and
the discussion of
highA
school
not,
compelled
to attend.
viewpoint or
no one
however,
entirely
Unlike
an
different matter.
ceremony,
graduation
imprimatur
meetings in
News Club
lacked
Good
which
after-hours
school,
place
is to
the school’s
graduation
the “essence of
speakers
the student
that the
ceremony-including
imprimatur on the
Dist.,
Sch.
320 F.3d
Pleasanton
selected.” Lassonde v.
school
Unified
(9th
denied,
2003),
U.S.
124 S. Ct.
Cir.
cert.
(2003).
more
events.
significant
is one of life’s
High
school
compulsory.
speakers
The
high
graduation is
Attendance at
school
clearly
“captive”
a
audience. The student
by the school
have
chosen
very
with a mix of
diverse
public
presumably
of a
school is
body
Muslims, atheists,
many of whom
Christians, Jews,
agnostics,
ceremony Christ and
being
to attend a
which
required
resent
would
captive
in the
audience.
Joy
being
present
shared with those
His
was
Lee,
society recognizes that even
acknowledged in
our
As the Court
adherence to the views
standing
remaining
signify
or
silent can
simply
a
Accordingly,
Lee,
at
(1995).Here the engaging District was not in viewpoint discrimination. In demanding references, there be no sectarian it was other means had no It restrictions. content-based imposing
properly aof sectarian “sharing” in this participation coerced preventing School Butte at 984. The Lassonde, F.3d See religious experience. unreasonably. not act did District Court. of the District the decision affirm I would