UNITED STATES DISTRICT COURT

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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DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S VERIFIED

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
AND INCORPORATED MEMORANDUM OF LAW IN SUPPORT

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

Civil Procedure Rule 12(b)(6).

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

meet requirements for standing to assert its claims.

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

management during playoff football games. (Compl. 20-26)

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

Jubilee Christian School (“Jubilee Christian”) at the Stadium. (Compl. 31-44.)

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

public tax dollars. (Compl. 57).

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

messages, including advertisements, commentary, and other communications, over the

loudspeaker in addition to providing commentary on the game. (Compl. 43-45.)

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

championship game. (Compl. 55.)

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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

joint prayer. The email read in pertinent part:

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.)

ARGUMENT AND MEMORANDUM OF LAW

I. St. Luke’s does not have standing to maintain this lawsuit.

To have standing a party must establish the constitutionally required elements of

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

members will continue to participate in championship games requires speculation. In other

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

is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662 (2009).

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

Dismiss should be granted.

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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.

Federal Constitutional Claims

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

U.S. 573 (U.S. Pa., 1989).

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

events is still considered a violation of the Establishment Clause.

2. SHSAA’s Public-Address Protocol embodies the neutrality mandated by the Establishment

Clause.

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

constitutional under the Lemon test.

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

may not use the loudspeaker to promote its beliefs.

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

accordance with the Establishment Clause.

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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 freedom of speech. U.S. CONST. amend I.

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

use of the forum.

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

Speech Clause of the First Amendment.

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

government’s interest to prevent cruelty to animals was not enough.

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

SHSAA’s Motion to Dismiss Plaintiff’s Verified Complaint For Declaratory and

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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