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Motion To Dismiss Assignment PDF
Motion To Dismiss Assignment PDF
Motion To Dismiss Assignment PDF
DISTRICT OF CANZAS
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ST. LUKE’S SCHOOL, INC. )
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Plaintiff, ) CIV. No. 959
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STATE HIGH SCHOOL ATHLETIC )
ASSOCIATION, INC. )
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Defendant. )
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COMES NOW, Defendant State High School Athletic Association, Inc. (“SHSAA”), by
and through counsel of record, and respectfully requests that this Court grant this Motion to
Dismiss claims by Planitff St. Luke’s School, Inc. (“St. Luke’s”) pursuant to Federal Rules of
INTRODUCTION
The SHSAA denied a request by St. Luke’s to use the loudspeaker to say a prayer before
a championship football game does not violate the First Amendment. The SHSAA acted under a
policy that does not violate the Establishment Clause under any of the tests the Supreme Court
currently uses to analyze Establishment Clause claims. The policy is neutral because it applies
equally to all religious groups. Further, the policy does not violate either the Free Speech or Free
Exercise Clause of the First Amendment because the policy is neutral and equally applied. St.
Luke’s has failed to allege facts that establish a violation of any provision under the First
Amendment. Requiring the SHSAA to allow St. Luke’s to use the loudspeaker for a pre-game
prayer would violate the Establishment Clause under current tests. This Motion to Dismiss should
be granted to allow the SHSAA to continue administering its neutral policy and complying with
the First Amendment. The Motion to Dismiss also should be granted because St. Luke’s does not
FACTUAL BACKGROUND1
In 1997, the State Legislature designated the SHSAA as the governing nonprofit
organization of state high school athletics. The SHSAA organizes and oversees the championship
games for all State high school athletics. The organization has adopted Administrative
Procedures to govern its operations. According to SHSAA Administrative Procedure 7.17, the
stadium loudspeaker is available for the broadcast of private messages provided by host school
St. Luke’s is a member of the SHSAA, which means St. Luke’s agreed to adopt and abide
by the SHSAA Bylaws and policies. At the end of the 2019 season, the St. Luke’s Meteors
football team played in the SHSAA’s Division 2A. St. Luke’s was one of 13 private, Christian
schools that played in Division 2A. The St. Luke’s Meteors’ final playoff game was against
During a conference call, prior to the game, the representatives of St. Luke’s and Jubilee
Christian asked to use the loudspeaker at the Stadium to lead their attending students, families,
and fans in a joint pre-game prayer. Within hours of receiving the requests from St. Luke’s and
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SHSAA relays all the facts as set forth in Plaintiff’s Complaint as district courts must accept all well-pleaded
allegations within the compliant as true. Garcia v. Eidal Int’l Corp., 808 F.2d 717, 719 (10th Cir. 1986).
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Jubilee Christian, Dr. Rita Baxter, acting on behalf of the SHSAA, denied the requests via e-
mail. Dr. Baxter said that the SHSAA “cannot legally permit or grant permission” for use of the
loudspeaker for prayer because the Stadium is a public facility, predominantly paid for with
On December 4, 2019, the St. Luke’s Meteors played Jubilee Christian in the 2019 2A
SHSAA Championship Game at the Stadium. Approximately 1,100 St. Luke’s and Jubilee
Christian supporters came to the Stadium to cheer on their respective teams. Before, during, and
after the game, as well at halftime, the SHSAA public address announcer delivered various
Because of the SHSAA’s policy, no prayer was offered over the loudspeaker.
Immediately prior to the start of the game, however, the two teams met at the 50-yard line to pray
together. At halftime, the SHSAA gave each team 7 minutes for its cheerleading squad to
perform. During that time, each school was permitted to, and St. Luke’s did in fact, take control
of the loudspeaker while its cheerleaders performed a halftime show. (Compl. 45-55.)
Although the St. Luke’s Meteors did not win the 2019 2A SHSAA Championship Game,
they enter the 2020 season with 20 returning players and aspirations to return to the state
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On December 7, 2019, the SHSAA sent another e-mail to St. Luke’s and Jubilee Christian
elaborating on and reiterating its decision prohibiting the use of the Stadium loudspeaker for a
The issue was never whether prayer could be conducted. The issue was, and is, that an
organization [the SHSAA] cannot endorse or promote religion. The issue of prayer, in
and of itself, was not denied to either team or anyone in the stadium. (Compl. 56.)
On January 7, 2020, the SHSAA posted a press release on its website reiterating its decision
to prohibit prayer over the Stadium loudspeaker. In the press release, the SHSAA again stated
that it could not “legally permit” use of the Stadium loudspeaker by a private party for a
community prayer. This determination amounts, in substance, to a policy banning all pre-game
prayer over the loudspeaker on account of its religious nature. (Compl. 56-59.)
standing. These components are injury in fact, causation, and redressability. Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000).
First, St. Luke’s does not have standing under the rule against third party standing. Lujan
v. Defenders of Wildlife, 504 U.S. 555 (1992). Under this rule, only the plaintiff who has been
injured has standing to sue. St. Luke’s is not the injured party in these circumstances. Rather, St.
Luke’s alleges that members of its organization, namely its players, were injured by the neutral
policy. An association may sue on behalf of one of its members if one of its members has
standing to sue. St. Luke’s does not have standing to sue under the theory of associational
standing because none of its members has standing to sue for the reasons set forth below.
St. Luke’s alleged facts do not constitute an injury in fact. To constitute an injury in fact,
the alleged injury must be “concrete, particularized, and actual or imminent; fairly traceable to
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the challenged action; and redressable by a favorable ruling.” Clapper v. Amnesty Int’l USA, 133
S. Ct. 1138 (2013). Here, the alleged injury is merely speculative, so it is not actual or imminent.
St. Luke’s alleges that the SHSAA policy will continue to prohibit religious speech at
future SHSAA championship series games. However, the notion that St. Luke’s or any of its
words, this injury is merely speculative because it is not certain whether St. Luke’s will play in
the championship game next year. Because St. Luke’s may or may not be in the championship
game next year, the members of St. Luke’s cannot be sure that they will be affected by a policy
that provides only for secular communication. St. Luke’s does allege that it has at least twenty
returning players who have hopes of qualifying for the championship game, but there is simply
no concrete way to ensure that St. Luke’s players will be in the championship game next season
without knowing how the other teams in the league will perform.
St. Luke’s has not alleged facts sufficient to allow its complaint to proceed. The
complaint must allege sufficient facts that, if accepted as true, would “state a claim to relief that
is plausible on its face” in order to defeat a motion to dismiss for failure to state a claim. Facial
plausibility means that the facts alleged permit a “reasonable inference” that the defendant is, in
fact, liable. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint will only survive
a motion to dismiss if it alleges nonconclusory facts that, taken as true, state a claim to relief that
Here, St. Luke’s only alleges conclusory facts that allege a violation of the First
Amendment not plausible on its face. In fact, what St. Luke’s requests would itself be a violation
of the First Amendment. The inference from the alleged facts, taken as true, stands to show that
the SHSAA policy was designed to not infringe on any religious rights. Thus, this Motion to
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II. St. Luke’s does not state claims for relief in its Complaint.
St. Luke’s fails to state a claim for which relief can be granted under the Federal Rules of
Civil Procedure because the SHSAA policy does not violate the Coercion, Lemon, or Neutrality
tests for a violation of the Establishment Clause. Further, St. Luke’s has failed to establish that
either the Free Speech or Free Exercise Clause can override the Establishment Clause because
under both the Free Speech and Free Exercise Clauses the policy applies neutrally. Because St.
Luke’s has failed to establish the elements of any test for a violation under the First Amendment,
this Motion to Dismiss pursuant to 12(b)(6) of the Federal Rules of Civil Procedure should be
granted.
1. The Establishment Clause of the First Amendment precludes the First Amendment claims
brought by St. Luke’s.
Under, The Establishment Clause the government is prohibited from making any law
“respecting an establishment of religion.” U.S. CONST. amend. I. One important test under the
Establishment Clause is the coercion test. Under this test, the government does not violate the
establishment clause unless it (1) provides direct aid to religion in a way that would tend to
establish a state church, or (2) coerces people to support or participate in religion against their
will. County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, 492
The SHSAA policy is Constitutional under the coercion test. In Santa Fe Indep. Sch.
Dist. v. Doe, 530 U.S. 290 (2000), the Court held, “Under the Establishment Clause of the First
Amendment, a public school may not permit student-led, student-initiated prayer at school
sporting events.” The Court reasoned that although attending football games does have a
voluntary aspect, the delivery of a pre-game prayer has the improper effect of coercing those
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present to participate in an act of religious worship. Here, the SHSAA is not a public school but
it is a state actor that facilitates high school athletic activities. Allowing St. Luke’s to pray over
the loudspeaker at the championship game would produce the same results as in Santa Fe Indep.
Sch. Dist. v. Doe. Thus, the SHSAA policy prohibiting the prayer complies with the
Establishment Clause.
Further, under Lee v. Weisman, 505 U.S. 577 (1992), the SHSAA policy does not coerce
students. Here, the Court held that under the Establishment Clause, the government may not
invite clergy to deliver prayers at a public-school graduation ceremony. This case differs slightly
because the Court found that attendance at a graduation ceremony is such an important life event
that it is practically mandatory; thus, allowing prayer from one religion was coercion. Attending
graduation may be less voluntary than going to a football game, but allowing prayer at such
The Court has interpreted the Establishment Clause to mean that the government may not
prefer religion over non-religion or non-religion over religion. In other words, government action
must be neutral. The SHSAA policy maintains a neutrality that allows it to comply with the
Establishment Clause. Thus, St. Luke’s has failed to state a claim for which relief can be granted.
The neutrality test was applied in Lemon v. Kurtzman. Under this test, government action
is unconstitutional under the Establishment Clause unless it (1) has a secular purpose, (2) has a
primary effect that neither advances nor inhibits religion, and (3) does not foster excessive
government entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602 (1971). The SHSAA
is constitutional under the Lemon test because the policy has a secular purpose in that it does not
promote religion by requiring every person at the championship game to listen to a prayer over
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the loudspeaker. The primary effect neither advances nor prohibits religion because the policy
does not prohibit prayer at the game, it simply prohibits use of the loudspeaker for prayer which
would inappropriately advance religion. Finally, the policy eliminates the risk of excessive
government entanglement by not incorporating religion into the policy. In this way, the policy is
The SHSAA policy is also neutral because it applies to all religions. Under neutrality, the
government would treat religious groups the same as other similarly situated groups. In Agostini
v. Felton, 521 U.S. 203, 234 (1997), the Court held, “A law impermissibly advances religion if
it: (1) results in governmental indoctrination; (2) defines its recipients by reference to religion; or
(3) creates an excessive entanglement.” Here, the Court found that the policy at issue was neutral
because the government aid was available to both the religious and non-religious. The SHSAA
policy is neutral in the same way because it does not allow use of the loudspeaker to promote any
religion. St. Luke’s may not use the loudspeaker to say a prayer just as a different religious group
The SHSAA policy does allow use of the loudspeaker for the cheerleaders and other
private messages. However, the policy maintains neutrality by allowing the same use for both the
public and private schools. Whether the school is public or private the cheerleaders get the same
amount of time to use the loudspeaker. Further, the other private messages provide for
sponsorships. Without these sponsorships, the SHSAA would probably not be able to financially
support a Championship game. These sponsorships remain free from any religious entanglement
and offer neutral messages. For these reasons, the SHSAA policy is neutral and thus in
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3. St. Luke’s Alleged Free Speech and Free Exercise Claims do not Override the
Establishment Clause.
The neutrality of the SHSAA policy also eliminates St. Luke’s claims concerning a
violation of the Free Speech and Free Exercise Clause. The Free Exercise and Freedom of Speech
clauses provide, Congress shall make no law…prohibiting the free exercise of religion or abridging
The SHSAA policy does not violate the Free Speech Clause of the First Amendment
because although the policy does limit speech, it is an appropriate limitation consistent with the
Here, the SHSAA policy, restricting prayer over the loudspeaker, is a limitation that is
consistent with the use of the forum as a football stadium. The restriction is viewpoint neutral
because it restricts all forms of prayer over the loudspeaker but provides for prayer within the
Stadium. The limitation allows players, cheerleaders, families, and spectators to enjoy the game
without being subjected to undue religious coercion. For these reasons although the SHSAA policy
does limit a certain type of speech is does so appropriately and thus not in violation of the Free
The SHSAA policy does not violate the Free Exercise Clause of the First Amendment
because the policy does not prohibit any group from exercising or not exercising religion. In
Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990),
the court reasoned that a government burden on a religious belief or practice requires little
justification as long as the law in question is determined to be generally applicable and does not
target a specific religion or religious practice. Here, the law at issue concerned a criminal statute
that prohibited the use of peyote. One religious group in Oregon used peyote as a part of a religious
practice. The Court found the law prohibiting the use of peyote did not violate the Free Exercise
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Clause of the First Amendment because the prohibition applied neutrally and did not target any
one religion thus denying one group the ability to freely exercise religion.
The SHSAA policy is similar to the neutrally applied law in Employment Division v. Smith
because it does not target a specific religion or religious practice. The SHSAA policy prohibits
any use of the loudspeaker for prayer for any religious or non-religious group. In this way, no one
religion is prohibited from expressing its religion. Further, the policy does not prohibit religious
expression. Both teams engaged in a pre-game prayer at the 50-yard line without any consequences
from the SHSAA. Thus, the policy applies neutrally and does not, in fact, prohibit any religious
exercise.
An example of when the Court did find a seemingly neutral law to violate the Free Exercise
Clause of the First Amendment is found in Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520 (1993). Here, the Court held, typically, a neutral and generally applicable
law does not need to be justified by a compelling governmental interest even if it has the incidental
effect of burdening a particular religious practice. In this case, the Court found a city ordinance
targeted a specific religion when it prohibited ritualistic animal sacrifices after the Church of Lukumi
announced it was establishing a church within the city. Because the court found that the language in
the ordinance was designed specifically to prohibit the practices of the Church of the Lukumi, the
The SHSAA policy is unlike the ordinances in the Church of Lukumi case because the SHSAA
policy applies equally to all religions. The policy is not designed to specifically target any one religion
or religious practice. For example, the policy equally prohibits use of the loudspeaker for Jewish and
Christian prayer. The purpose of the SHSAA policy is to provide a public forum where high schoolers
of all religions can feel free to participate in the American pastime of football. The policy does not
target any religion or religious practice; therefore, this purpose is enough to satisfy the policy.
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St. Luke’s Alleged Free Speech and Free Exercise claims do not override the
Establishment Clause because the neutrality of the policy maintains its compliance with each
clause of the First Amendment under each current test. Because St. Luke’s has failed to allege
facts that violate any test of the First Amendment this Motion to Dismiss should be granted.
CONCLUSION
WHEREFORE, the SHSAA respectfully requests that the Court: (1) grant the
Injunctive Relief; and (2) grant any other relief that the Court deems just and proper.
3/19/2020
DATED: _______________________.
Respectfully Submitted,
_______________________________
CERTIFICATE OF SERVICE
3/19/2020
I HEREBY CERTIFY that on __________________, I filed the foregoing with the
Clerk of the Court by using the CM/ECF system, which will electronically serve all
counsel of record:
________________________________________________________
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