Opinion
Case No. 1:01-CV-0266
July 20, 2001
John R. Price, Bruce A. Stuard, John R. Price and Associates, Indianapolis, In, for plaintiff.
Anthony S. Benton, Stephen R. Pennell, Barry L. Loftus, Stuart and Branigin, Lafayette, IN, for defendant.
Kenneth J. Falk, Sean C. Lemieux, Indiana Civil Liberties Union, Intervenor defendant, Indianapolis, IN.
MEMORANDUM OF DECISION AND ORDER
Presently before the court are the Defendants' motions to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) and for failure to state a claim for relief pursuant to Fed.R.Civ.P. 12(b)(6) filed on July 11, 2001. The Court expedited the briefing schedule on these motions and, in accordance with that schedule, the Plaintiffs' responded to the Defendants' motions on July 16, 2001. The court held an evidentiary hearing on these motions as well as Plaintiffs' motion for preliminary injunction on July 17, 2001. Following the evidentiary hearing, the court heard oral argument on the evidence and law. This Order resolves only the Defendants' motions to dismiss. In a separate Order entered simultaneously herewith is the court's opinion relating to the Plaintiffs' Request for a Preliminary Injunction.
For the following reasons, the Defendants' motions to dismiss will be GRANTED in part and DENIED in part.
FACTUAL BACKGROUND
The parties have stipulated a large portion of the facts pertinent to this discussion. This factual recitation is based upon the Plaintiffs' Complaint and its attachments, the Defendants' motion to dismiss and affidavits in support, and the facts set forth at the Preliminary Injunction hearing. Only the facts pertinent to the present motions to dismiss have been set forth herein.
The Plaintiffs, eleven residents and taxpayers of the state of Indiana and twenty-one members of the Indiana General Assembly (hereafter, "the Plaintiffs") filed suit against the Defendants, Indiana University-Purdue University Fort Wayne ("IPFW") and ten members of the Board of Trustees of Purdue University ("the Board") (collectively, "the Defendants") pursuant to 42 U.S.C. § 1983 alleging that the Defendants will violate the Establishment Clause of the United States Constitution if they are not enjoined from presenting playwright Terrence McNally's play Corpus Christi (hereafter "the Play") on August 10, 2001 at the Studio Theater located in Kettler Hall on IPFW's campus.
Jonathan Gilbert is a senior at IPFW majoring in theater with an emphasis in directing. For his senior project, Gilbert selected the Play with permission from IPFW faculty and plans (unless enjoined from doing so) to direct its performance at the IPFW Studio Theater. Gilbert moved to intervene in this action but this motion was denied by the undersigned on July 12, 2001.
The Play's protagonist is Joshua, a young gay man from South Texas, who is surrounded by his disciples, a group of twelve gay men. Each disciple takes the name of one of the historical disciples of Christ in the New Testament of the Bible. According to the Plaintiffs' interpretation of the Play, "Joshua faces many of the challenges and circumstances confronted by Christ in the New Testament." (Brief in Support, p. 2).
In their Complaint, the Plaintiffs allege that the Play is an "undisguised attack on Christianity and the Founder of Christianity, Jesus Christ," and thus, the performance of the Play in a publicly funded, taxpayer owned educational facility such as IPFW violates the separation between church and state as required by the Establishment Clause. The Complaint sets forth four and a half pages of alleged hostile references to Christianity.
Plaintiffs also assert a second claim for a violation of Indiana's Constitutional provisions, Article I, Section IV which is addressed in the latter portion of this Order.
The Plaintiffs, of various Christian denominations, also aver as follows: "[T]he Christ I believe in was turned in Corpus Christi into a non-divine person, which is completely contrary to the Savior I know personally, and from Holy Scripture. I am personally sickened and offended by the words and actions used in this play to portray my Savior" (Affidavit of Patricia Corbat, 65); " Corpus Christi, . . . is offensive to me as a Christian. It portrays Jesus Christ, the Founder of Christianity, as an evil, sinful man, and in all ways is contrary to the historical record of Jesus set forth in the Bible." (Affidavit of Dan Linnemeier, ¶ 4); " Corpus Christi is a slap in the face of Christians and those who revere and worship Christ." ( Id. at ¶ 6); "The play is a direct attack on the basic tenets of Christianity, portrays Jesus as a liar, blasphemer, as sexually active and who disclaims His own deity." (Affidavit of Glenna Jehl, ¶ 4).
The Plaintiffs assert that Kettler Hall is a publicly owned facility funded by taxpayers out of IPFW's operating budget, that the cost of utilities and "for other appurtenant and affiliated costs involved with the presentation" of the Play are funded by taxpayer dollars, and that taxpayer dollars pay the salary of the Chairman of the Theater Department, Larry Life ("Life"), who Plaintiffs contend has arranged the production, given public statements as to his involvement in the Play, and is "widely perceived in the public media as a public employee who has more than active involvement in the presentation of the Play." (Complaint, ¶ 20).
Several plaintiffs testified at the hearing that they have altered their day-to-day affairs as a result of the proposed performance of the Play. Plaintiff, Dan Linnemeier, for instance, claims that he is required to go to the County Extension Office located on IPFW's campus for his job and that he refuses to go onto campus because of the hostile environment toward Christians engendered by the Play. He also testified that he and his wife attended gardening shows at IPFW but will no longer do so because of IPFW' s decision to produce the Play. Plaintiffs Jehl, Corbat, and Olinger claim that they will refuse to fund their children's or other close relatives' higher education costs if those children or relatives choose to attend IPFW. Finally, Plaintiff Francisco Carlos Avila asserts that as a result of the Play he has written a letter to the John Purdue Club, an organization affiliated with Purdue University, indicating that he will no longer contribute to that organization because of the Play. Given this interspersing of state tax revenue with the Play and the fact that they must alter their lives to avoid the alleged state sponsored religious attack on Christianity, Plaintiffs claim that an Establishment Clause violation exists.
In addition to these facts, the parties filed a joint stipulation addressing the following facts: Purdue University is a state educational institution of higher learning created by and existing under various Indiana statutes. The Trustees of Purdue University ("Trustees") is a statutory body corporate created by and existing under Indiana law, charged by Indiana law with the responsibility for operating Purdue University. Pursuant to statute, the Trustees are managed by the Board. IPFW is a joint regional campus of Indiana University, a state educational institution of higher learning, and Purdue University, and is managed and operated by Purdue pursuant to a written agreement between the trustees of both Indiana and Purdue Universities. (Joint Stipulations, ¶¶ 1-4)
Each biennium, the Indiana General Assembly makes a specific appropriation to the Trustees for the express purpose of funding operations at IPFW. IPFW, in addition, receives revenues through fees approved by the Board, gifts, and miscellaneous other sources. These sources of IPFW revenue, including the appropriation from the Indiana General Assembly are combined into an operating budget that is approved annually by the Board. (Joint Stipulation, ¶ 5). The operating budget is eventually supplied to IPFW officials for use in varying ways on the IPEW campus. Typical expenditures from the operating budget include utilities for campus buildings, security for campus events, and salaries for faculty and staff members. (Joint Stipulation, ¶ 6, ¶ 14).
The parties advise that once the Board receives funds from the state legislature it, in turn, delegates the power to spend monies from the operating budget to the President of Purdue University, who, in turn, delegates that power to the Chancellor of IPFW. After it delegates the spending authority for IPFW, the Trustees do not participate in the day-to-day decision-making process regarding individual fund expenditures.
IPEW also maintains Student Activity Funds which are not part of the operating budget. These Student Activity Funds are generated through an activity fee charged to students. Aside from the salaries for Theater Department employees and the utilities for the various building utilized by the IPFW Theater Department paid out of the operating budget, all costs associated with IPFW Theater Productions are paid for by either the Student Activity funds or through gift funds. (Grote Affidavit, ¶¶ 4, 5).
DISCUSSION
Motion to Dismiss for lack of jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1)
Defendants characterize their motion to dismiss as a motion pursuant to Fed.R.Civ.P. 12(b)(1) attacking the subject matter jurisdiction of the court. "When a plaintiff lacks standing to bring suit, a court has no subject matter jurisdiction over the case." In re United States Catholic Conference, 885 F.2d 1020, 1023 (2d Cir. 1989); Simmons v. Interstate Commerce Commission, 900 F.2d 1023, 1026 (7th Cir. 1990) ("If the petitioners have no standing, there is no case or controversy, and the court does not have the power to entertain the case under Article III of the Constitution.").
At the pleading stage, "general factual allegations of injury resulting from the defendant's conduct are sufficient to overcome a motion to dismiss, for on a motion to dismiss the court presumes that `general allegations embrace those specific facts that are necessary to support the claim.'" Doe v. County of Montgomery, 41 F.3d 1156, 1159 (7th Cir. 1994) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 (1992). However, case authorities also recognize that "[a] court may treat a motion to dismiss as one for summary judgment, thereby requiring that a plaintiff provide affidavits supporting factual allegations made in the complaint. Disputed factual issues may be resolved at a pretrial evidentiary hearing or during the course of trial." Bischoff v. Osceola County, Fla., 222 F.3d 874, 878 (11th Cir. 2000). Indeed, when faced with standing issues, courts are required to hold an evidentiary hearing to determine disputed factual issues. See Martin v. Morgan Drive Away, Inc., 665 F.2d 598 (5th Cir. 1982); Steele v. National Firearms Act Branch, 755 F.2d 1410 (11th Cir. 1985); Munoz-Mendoza v. Pierce, 711 F.2d 421 (1st Cir. 1983). That is what occurred in this case and thus, the court considers the evidence presented at the hearing along with the additional documentation submitted by the parties.
We begin with the general notion that the standing requirement in Article III "`is not merely a troublesome hurdle to be overcome if possible so as to reach the `merits' of a lawsuit,' but an integral part of the governmental charter established by the Constitution." ACLU-NJ v. Township of Wall, 246 F.3d 258 (3d Cir. 2001) (quoting Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 474, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982)). Under Article III of the Constitution, a party must demonstrate standing in order to satisfy the "case or controversy" requirement necessary to the exercise of our judicial power. Simmons v. Interstate Commerce Commission, 900 F.2d 1023, 1026 (7th Cir. 1990), cert. denied, 499 U.S. 919, 111 S.Ct. 1308, 113 L.Ed.2d 242 (1991). The standing inquiry demands a three-part showing: "(1) the party must personally have suffered an actual or threatened injury caused by the defendant's allegedly illegal conduct, (2) the injury must be fairly traceable to the defendant's challenged conduct, and (3) the injury must be one that is likely to be redressed through a favorable decision." Id. (quoting Valley 454 U.S. at 472). Plaintiffs bear the burden of establishing standing, and each element must be supported by more than unadorned speculation. Plotkin v. Ryan, 239 F.3d 882, 885 (7th Cir. 2001). Here, the dispute centers on the first element: whether the plaintiffs suffered an injury in fact by the proposed performance of the Play on government property.
To allege adequately an injury in fact, a plaintiff must show "an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical." See Lujan, 504 U.S. at 560-61. Indeed, "[n]o plaintiff has standing `to complain simply that their government is violating the law.'" Cato v. United States, 70 F.3d 1103, 1009 (9th Cir. 1995). Likewise, "[a] generalized injury shared by the plaintiff with the public at large is insufficient to create a concrete `case or controversy' over which a federal court may exercise its jurisdiction." Ernst v. Child Youth Services, 108 F.3d 486, 499-500 (3d Cir. 1997). Even where convictions are sincerely held, as is clearly the fact in the present case, the lack of a personal stake in the outcome of the case condemns any claim of government misconduct. See Fishbeck v. North Dakota, 115 F.3d 580, 580 (8th Cir. 1997) ("[The Plaintiffs'] convictions are sincere, and they are knowledgeable on the subject, but they have no personal stake in the outcome of this case . . . They are simply interested in the subject as a matter of public policy. This sort of interest is not sufficient to create a case or controversy."). Plaintiffs must identify a "personal injury suffered by them as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees." Valley Forge, 454 U.S. at 485.
Standing to assert an Establishment Clause claim may rest either on the plaintiff's direct exposure to the challenged activity, see, e.g., School District of Abington v. Schempp, 374 U.S. at 224 n. 9, 83 S.Ct. 1560 (students attending a public school, and their parents, have standing to challenge a program of Bible reading in the school because they are "directly affected by the laws and practices against which their complaints are directed"), or, in certain situations, on the plaintiffs status as a taxpayer, see, e.g., Flast v. Cohen, 392 U.S. 83, 103-04 (1968); Doremus v. Board of Education, 342 U.S. 429, 433-35 (1952). Each of the individual plaintiffs, including the twenty-one members of the General Assembly, allege taxpayer standing as taxpayers of the State of Indiana. In addition, Plaintiffs Linnemeier, Glenna Jehl, Olinger, Avila, and Corbat, claim standing because they have been exposed to the challenged activity causing them to alter their normal behavior. The plaintiffs' brief focuses more on the issue of taxpayer standing and it is with that proposition the court shall begin its discussion.
Some of the Plaintiffs also allege standing based upon being taxpayers of the city of Fort Wayne.
The seminal case addressing taxpayer standing in the context of an alleged Establishment Clause violation is Doremus v. Board of Education, 342 U.S. 429 (1952). There, the Supreme Court recognized that a municipal taxpayer may possess standing to litigate "a good-faith pocketbook action." Id. at 434. The plaintiffs in Doremus were state and municipal taxpayers who challenged a state law mandating Bible reading in public schools. Id. at 430-31, 433. The Supreme Court found that the plaintiffs failed to establish a direct monetary injury that would confer standing to raise such a challenge, as they did not allege that the Bible reading was "supported by any separate tax or paid for from any particular appropriation or that it adds any sum whatever to the cost of conducting the school." Id. at 433. Likewise, the plaintiffs failed to provide any "information . . . as to what kind of taxes" they paid or to aver "that the Bible reading increase[d] any tax they [did] pay or that as taxpayers they are, will, or possibly can be out of pocket because of' the activity. Id. In short, the plaintiffs failed to establish more than a potential de minimis drain on tax revenues due to the challenged reading. See id. at 431-32. As a result, the plaintiffs lacked standing to sue.
Since Doremus, the same result has obtained in other cases. See ACLU-NJ v. Township of Wall, 246 F.3d 258 (3d Cir. 2001) (municipal taxpayers and civil liberties association had no standing to challenge holiday display because they failed to establish the township spent money obtained through property taxes on the religious elements of the display or that maintenance costs were more than de minimis); Doe v. Madison Sch. Dist. No., 321, 177 F.3d 789, 794 (9th Cir. 1999) (en banc) (noting that "the school's expenditures for teachers' salaries, equipment, building maintenance, and the like were insufficient to confer taxpayer standing [in Doremus] despite their indirect support of the Bible reading"); Doe v. Duncanville Indep. Sch. Dist., 70 F.3d 402, 408 (5th Cir. 1995) (plaintiffs failed to show that the defendant school district spent any money on the distribution of Bibles by the Gideon Society in public school); Gonzales v. North Township, 4 F.3d 1412, 1416-17 (7th Cir. 1993) (taxpayer standing denied where plaintiffs failed to show that tax revenue is spent for the crucifix or its maintenance or that maintenance expenses for the park areas surrounding the crucifix wouldn't have been spent regardless of the presence of the crucifix); Freedom From Religion Foundation, Inc. v. Zielke, 845 F.2d 1463, 1466 (7th Cir. 1988) (plaintiffs had no taxpayer standing to enjoin the display of a monument of the Ten Commandments in a park owned and maintained by the defendant city since no showing that tax liability increased because of monument).
Plaintiffs blanketly assert in their brief that the "maintenance of this theater, as well as the lighting for the play, the advertisement for the play and any supplies needed for the performance of the play will be procured through the expenditure of tax money." (Brief in support of Preliminary Injunction, p. 4). The plaintiffs further reference the fact that the Theater Department Chairman's salary is paid out of public funds over a twelve month period and to the extent he is expending paid time and effort on the Play (as a faculty advisor to Gilbert) he is impermissibly endorsing the viewpoint of the Playwright.
In response to these allegations, the Defendants submit evidence indicating that taxpayer dollars are funneled into a general fund operating budget which, as Plaintiffs' argue, pays the salary of IPFW faculty and the utilities of buildings on IPFW's campus. (Affidavit of Philip Grote, ¶ 4; Joint Stipulation, ¶ 6). Defendants also provide affidavit testimony from Grote that all other costs associated with Theater Department productions are paid from either "Student Activity Funds, gift funds, or income-producing funds, none of which are part of the General Fund." Grote Affidavit, ¶ 5. The record further reflects that the student seeking to direct this Play privately raised $3,000 to pay for scripts and royalties and that a private donor has offered to foot the bill for two county police officers to provide security at the Play's six performances.
Plaintiffs have produced no evidence to counter these assertions but simply maintain that the use of taxpayer dollars to pay for utilities for the Play, the fact that Kettler Hall was built with taxpayer funds, and that IPFW will incur some of the security expenses out of the operating fund weighs in favor of taxpayer standing. Unfortunately for the Plaintiffs, the case authorities belie this assertion.
In Doe v. Madison School District, for instance, the plaintiffs, mother and daughter, brought an Establishment Clause challenge to a school district's policy of pennitting student prayers at high school graduations. After a thorough review of Doremus and its progeny, the court determined that the plaintiffs lacked standing:
Doe identifies no tax dollars that defendants spent solely on the graduation prayer, which is the only activity that she challenges. In fact, Doe acknowledges affirmatively that "[t]he prayers . . . cost the state no additional expense." Doe instead alleges that defendants spent tax dollars on renting a hall, printing graduation programs, buying decorations, and hiring security guards. But those are ordinary costs of graduation that the school would pay whether or not the ceremony included a prayer. Therefore, those expenditures cannot establish taxpayer standing. This case is legally indistinguishable from Doremus, in which the school's expenditures for teachers' salaries, equipment, building maintenance, and the like were insufficient to confer taxpayer standing despite their indirect support of the Bible reading.
Doe, 177 F.3d at 794; see also Friedmann v. Sheldon Community Sch. Dist., 995 F.2d 802, 803 (8th Cir. 1993) (Plaintiffs have made no allegation that the state is spending money for religious purposes. They have not shown any state money going to the invocation or benediction, which is what they contend violates the Establishment Clause. They have shown no more than that state money is spent for diplomas, which certainly is not objectionable under the Establishment Clause.")
As was the case in Doe, this court finds this case legally indistinguishable from Doremus and its progeny. The plaintiffs have asserted and provided evidence of only four facts: (1) Kettler Hall is a taxpayer built building maintained by IPFW through taxpayer funds; (2) utilities for the Studio Theater are paid from the operating fund; (3) funding for campus security occasioned by the Play will come from the operating fund; and (4) the salary of IPFW faculty member Larry Life ("Life") comes from the operating fund. Some of these costs, such as Life's salary and the building and maintenance of Kettler Hall, are clearly costs that IPFW would have spent regardless of the content or production of the Play. See Gonzales, 4 F.3d at 1414 (finding that the plaintiffs' claim is "undercut by their inability to show that tax revenue is spent for the crucifix" and "although Township funds are spent maintaining the Park areas surrounding the crucifix, this cost would be incurred with or without the presence of the crucifix."). Indeed, it is not alleged that taxpayer funds were expended to build Kettler Hall especially for this Play.
With respect the cost of utilities in the Studio Theater as well as the cost of campus security during the six days of the Play's performance the court finds there has been no evidence suggesting that these would be but a de minimis drain on tax revenues and cannot, without more, provide the plaintiffs with taxpayer standing. Id. at 431; see also ACLU-NJ, 246 F.3d at 264 ("we cannot simply assume that the Township expends more than a de minimis amount in lighting the religious elements of the display."). Moreover, the court has no evidence before it that the cost of the overall utility budget for the Theater Department has increased as a result of this Play or that a different play would not have been performed (thereby resulting in a similar utilities expenditure) if the present one were not scheduled. "There is no allegation that this activity is supported by any separate tax or paid for from any particular appropriation or that it adds any sum whatever to the cost of conducting the school." Doremus, 342 U.S. at 431. Thus, the court concludes that Plaintiffs have failed to meet their burden to establish standing as taxpayers to assert an Establishment Clause violation. Accordingly, the members of the Indiana General Assembly are hereby DISMISSED from this case for they have alleged no injury in fact other than their status as taxpayers. In addition, individual plaintiffs, Tom and Rosie O'Grady, Ben and Rita Clemmer and Regina Martin are likewise DISMISSED for the same reason.
Two plaintiffs who are members of the General Assembly provided testimony at the preliminary injunction hearing, but neither indicated that they had come into any direct or unwelcome contact with the Play or that they altered any behavior to avoid coming into contact with the Play. Thus, the record stands void of any allegations other than the fact that the legislators, as a whole, claim taxpayer status.
The dismissal of these plaintiffs notwithstanding, the remaining Plaintiffs may establish standing by demonstrating that the Plaintiffs have suffered an injury in fact from the display of a religious object or message. For instance, "the individual may show he has undertaken a special burden or has altered his behavior to avoid the offensive object." Books v. City of Elkhart, Indiana, 235 F.3d 292, 299 (7th Cir. 2000) (citing, e.g., Freedom from Religion Found. Inc. v. City of Marshfield Wisconsin, 203 F.3d 487, 489 (7th Cir. 2000) (avoids using the park); Gonzales v. North Township, 4 F.3d 1412, 1416-17 (7th Cir. 1993) (avoids area of the park); Harris v. City of Zion, 927 F.2d 1401, 1405 (7th Cir. 1991) (alters travel routes); Doe v. Village of Crestwood, 917 F.2d 1476, 1478 (7th Cir. 1990) (will stay away from festival); American Civil Liberties Union v. City of St. Charles, 794 F.2d 265, 269 (7th Cir. 1986) (alters behavior by detouring); Doe v. Small, 726 F. Supp. 713, 718-19 (N.D.Ill. 1989), rev'd en banc on other grounds, 964 F.2d 611 (7th Cir. 1992) (avoids using park)).
It goes without saying that each of the remaining Plaintiffs object to the viewpoint of the Play as hostile to their particular religious beliefs and offensive to the personal way in which they conduct their lives. However, "offense to moral and religious sensitivities does not constitute an injury in fact and is insufficient to confer standing." Gonzales v. North Township of Lake County Indiana, 4 F.3d 1412 (7th Cir. 1993). "Rather, the plaintiff must `incur a tangible, albeit small cost that validates the existence of genuine distress and warrants the invocation of federal jurisdiction.'" Id. at 1414 (quotingHarris v. City of Zion, 927 F.2d 1401, 1406 (7th Cir. 1991). This small cost may be in the form of "an identifiable trifle." United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 689 n. 14 (1973).
Plaintiffs assert that they have incurred a tangible cost by altering their behavior because of the possible performance of the Play. Plaintiff Linnemeier states that he avoids the County Extension Office on IPFW's campus which he must regularly use as part of his employment because of the hostility on the IPFW campus toward Christians caused by the Play. He and his wife likewise will avoid attending some gardening shows/activities held on campus that they would normally attend because of the Play. Plaintiff Francisco Carlos Avila states that he has stopped contributing to an organization affiliated with Purdue University because he believes the University, by producing the Play on campus, is impermissibly attacking his Roman Catholic faith. Finally, Plaintiffs Jon Olinger, Patricia Corbat and Glenna Jehl (and presumably her spouse who is also a plaintiff) claim that the Play's intended performance has caused them to reconsider prior decisions that they had made to fund some or all of certain family member's higher education. In addition, Corbat testified that she attended IPFW previously and that she will "never step foot on [IPFW's] campus again."
Olinger, who is president of the Fort Wayne Community School Corporation, also testified that he would think twice before engaging in activities with IPFW's campus and particularly, the Theater Department, because of the Play. The court does not, however, believe this to be sufficient to confer standing because these allegations again fail to demonstrate a particularized or an actual or imminent injury.
At oral argument, Defendants' counsel indicated that these alterations of behavior were "self inflicted" injuries and that the Plaintiffs voluntarily chose to change their behavior. This may be true, however, it has no bearing on the legal question presented to the court which is whether the Plaintiffs' have demonstrated an injury sufficient to confer standing.
A review of the applicable cases on this point inform the court that these allegations are sufficient to confer standing for several of these plaintiffs, but not all of them. Corbat, Jehl, and Olinger have all failed to show an "actual or imminent" injury that is more than speculative. None allege that they have actually discontinued college funding for any family member in anticipation of the Play. Rather, these plaintiffs assert that their family members might, at some unspecified time in the future, choose to attend IPFW's campus and that they would not pay tuition for that family member because they believe the campus is hostile to their respective religions. Indeed, there is no evidence that any of their family members have even applied to IPFW. Thus, there is no actual or imminent injury to these plaintiffs. See Doe v. County of Montgomery, Illinois, 41 F.3d at 1161 (attorney alleging that his ability to practice law had been impeded had no standing where he failed to allege that he refused to represent any client because of the religious sign and failed to identify any case which has required, or will require, his presence in the courthouse).
Olinger's child, for instance, is in the seventh grade and Corbat's six nieces and nephews for whom she plans to provide college funding range in ages from 8 to 19. Moreover, Jehl's son, who is 21, is presently out of the country and will not be applying for graduate school until he returns in about a year.
However, the same cannot be said for Linnemeier and Avila. Both plaintiffs allege a particularized and "actual or imminent" threat to their interests as a result of the Play and an actual alteration of their normal behavior as a result of the challenged activity. See Zielke, 845 F.2d at 1468-69 (concluding no standing where plaintiffs neither altered their behavior as a result of the challenged activity nor were they exposed to the monument during their normal routines or in the course of their usual driving or walking routes). Thus, these two plaintiffs have established an "injury in fact" sufficient to provide them with standing.
This leaves the Court with Corbat's additional testimony that she has attended IPFW's campus in the past but she will never do so again. While the court has some doubt that this assertion is sufficiently particularized to permit a claim of "actual or imminent" injury, there is some support in the case law for the claim that avoidance of the entire campus is an actual injury. See Doe v. Village of Crestwood, 917 F.2d 1476 (plaintiff avoided entire festival because of mass occurring inside one tent). Thus, the court concludes that Corbat has standing to assert an Establishment Clause violation.
In sum, the court concludes that all of the plaintiffs but for Linnemeier, Corbat and Avila must be dismissed based upon lack of standing. Accordingly, Defendants' motion to DISMISS for lack of jurisdiction is GRANTED as to the twenty-one Indiana General Assembly members, Steve and Glenna Jehl, Ben and Rita Clemmer, Tom and Rosie O'Grady, Regina Martin, and Jon Olinger. The motion is DENIED as to Dan Linnemeier, Patricia Corbat and Francisco Carlos Avila.
Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6)
In their second motion to dismiss, the Defendants claim that the Plaintiffs fail to state a claim for relief because they have not sued "persons" as is required under 42 U.S.C. § 1983. Plaintiffs name IPFW and the individual members of the Board of Trustees of Purdue University in their official capacity. Defendants claim that IPEW is not a proper party to be sued because it is not a body corporate capable of suing in its own name or being sued under Indiana's statutes. Plaintiffs have not disputed this fact in either their brief or at oral argument. Thus, the court hereby DISMISSES IPFW from this case as it is not a proper entity to be sued.
Next, Defendants claim that individual members of the Board of Trustees of Purdue University are not "persons" under § 1983 since they are being sued in their official capacities which makes them an arm of the State of Indiana. It is clear that section 1983 does not authorize suits against states. See Power v. Summers, 226 F.3d 815, 818 (7th Cir. 2000); Arizonans for Official English v. Arizona, 520 U.S. 43, 69, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997); Will v. Michigan Dept. of State Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), Higgins v. Mississippi, 217 F.3d 951, 953 (7th Cir. 2000). Suits against state officials in their official capacities are suits against the "state" and are prohibited under § 1983. Arizonans for Official English v. Arizona, 520 U.S. at 69.
However, official-capacity suits against state officials that seek only injunctive relief are permitted by 42 U.S.C. § 1983. Will, 491 U.S. at 71 n. 10, 109 S.Ct. 2304, and not forbidden by the Eleventh Amendment. Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Here, it is clear that the Plaintiffs are suing solely for injunctive relief. Thus, the members of the Board of Trustees fall under this exception. Accordingly, the motion to dismiss the members of the Board of Trustees in their official capacities is DENIED.
Defendants assert that the Seventh Circuit held in Powers that official capacity claims against state officials alleging purely injunctive relief under 42 U.S.C. § 1983 are not cognizable. This is simply incorrect. Powers specifically states "official-capacity suits against state officials that seek only injunctive relief are permitted by 42 U.S.C. § 1983" Powers, 226 F.3d at 819.
Finally, Defendants ask this court to dismiss the Plaintiffs' supplemental state law claim alleging violations of Indiana Constitution Article I, Section IV. Supplemental jurisdiction may be declined when the court finds that the supplemental claim "raises a novel or complex issue of state law," 28 U.S.C. § 1367(c)(1), or "in exceptional circumstances" that there are "compelling reasons for declining jurisdiction." 28 U.S.C. § 1367(c)(4). There has been only one case in Indiana which has addressed Article I, Section IV of the Indiana Constitution. See Center Township of Marion County v. Coe, 572 N.E.2d 1350 (Ind.Ct.App. 1991). Retaining this claim may require the Court to embark on an interpretation of Indiana's Constitution, virtually unguided by state court precedent. As a matter of comity, whether the acts in question violate Indiana's Constitution are best left to the province of Indiana's state court judges. Accordingly, the court declines supplemental jurisdiction over Plaintiffs' state law claim alleging violations of Indiana's Constitution and that claim is hereby DISMISSED without prejudice.
CONCLUSION
In closing, the court acknowledges that this case has fundamental First Amendment liberties at risk. Both sides in this debate have strongly-held convictions about the propriety of the Play's performance at IPFW backed, they believe, by sound legal principles. In dismissing some of the plaintiffs, the Court acknowledges the sincerity of these plaintiffs' religious convictions and the offense they take to the Play's attack on their traditional Christian principles. However, "[j]urisdiction is power to declare the law, and when it ceases to exist, the oniy function remaining to the court is that of announcing the fact and dismissing the cause." Ex parte McCardle, 74 U.S. 506, 7 Wall. 506, 514, 19 L.Ed. 264 (1868). That is what this court is bound to do.
The Defendants' motion to dismiss for lack of jurisdiction is hereby GRANTED as to the twenty-one Indiana General Assembly members, Steve and Glenna Jehl, Ben and Rita Clemmer, Tom and Rosie O'Grady, Regina Martin, and Jon Olinger. The motion is DENIED as to Dan Linnemeier, Patricia Corbat and Francisco Carlos Avila. Defendants' alternative motion to dismiss for failure to state a claim for relief is also GRANTED as to Indiana University-Purdue University Fort Wayne and DENIED as to the members of the Board of Trustees of Purdue University in their official capacities. Plaintiffs' state law claim for violation of the Indiana Constitution is DISMISSED without PREJUDICE.
MEMORANDUM OF DECISION AND ORDER
This cause is before the court upon the Plaintiffs' Complaint and Motion for Preliminary Injunction filed on July 5, 2001. On July 17, 2001, the court heard evidence and argument on the Plaintiffs' request for a preliminary injunction. After considering this evidence in addition to reviewing the briefs and arguments of counsel, the court now enters it ruling on the Plaintiffs' request for a preliminary injunction. Entered simultaneously herewith are the court's rulings on the Defendants' motions to dismiss. For the following reasons, the Plaintiffs' request for a preliminary injunction will be DENIED.
GENERAL BACKGROUND
A group of Plaintiffs, originally including eleven residents and taxpayers of the state of Indiana and twenty-one members of the Indiana General Assembly (hereafter, "the Plaintiffs"), filed suit against the Defendants, Indiana University-Purdue University Fort Wayne ("IPFW") and ten members of the Board of Trustees of Purdue University ("the Board") (collectively, "the Defendants") pursuant to 42 U.S.C. § 1983 alleging that the Defendants will violate the Establishment Clause of the United States Constitution if they are not enjoined from presenting playwright Terrence McNally's play Corpus Christi (hereafter "the Play") on August 10, 2001 at the Studio Theater located in Kettler Hall on JPFW's campus. In an Order entered contemporaneously with this one, the undersigned dismissed the members of the Indiana General Assembly and various individual plaintiffs because they lacked standing to assert an Establishment Clause violation. In addition, the court dismissed IPFW because it was not a corporate entity subject to be sued under Indiana law. Finally, the court declined to exercise supplemental jurisdiction over the Plaintiffs' claim of an Indiana constitutional violation. There remain three plaintiffs of the original thirty-two and a single legal claim asserting an Establishment Clause violation. It is to this claim the court turns its attention in the instant order.
FACTUAL BACKGROUND
The Plaintiffs seek to enjoin the Play from going forward because they believe the Play is an undisguised attack on Christianity and the Founder of Christianity, Jesus Christ," and thus, the performance of the Play in a publicly funded, taxpayer owned, educational facility such as IPFW violates the separation between church and state as required by the Establishment Clause. The Complaint sets forth four and a half pages of alleged hostile references to Christianity and affidavits from several of the Plaintiffs in which they articulate their religious objections to the Play and their belief that the Play attacks basic tenets of Christian belief.
Plaintiffs also make passing reference to IPFW's "Antiharassment Policy," claiming that the performance of this Play violates that policy. However, the Plaintiffs did not articulate in either their brief or at oral argument how an alleged violation of this policy adds to the legal inquiry required in this case. Moreover, the policy itself exempts speech or conduct that is protected First Amendment expression. See IPFW Antiharassment Policy, Preamble ("The university reaffirms its commitment to freedom of speech as guaranteed by the First Amendment to the United States Constitution. Accordingly, any form of speech or conduct that is protected by the First Amendment is not subject to this policy."). Thus, the court has not factored this allegation into the analysis.
The Play's protagonist is a Christ-like figure named Joshua. Joshua is a young gay man from South Texas, who is surrounded by his disciples, a group of twelve gay men. Each disciple takes the name of one of the historical disciples of Christ in the New Testament of the Bible. The Play includes scenes where Joshua engages in homosexual relations with the disciples and portrays the Last Supper as a food fight.
It is a fair characterization of this Play that it is patently and grossly offensive to many traditional Christian beliefs and that this is the intent of the Play. The Playwright states as much in the Preface and the actor tells the audience this at the end of the Play when he says "[i]f we have offended, so be it."
Jonathan Gilbert ("Gilbert")is a senior at IPFW majoring in theater with an emphasis in directing. As part of his course work, he is enrolled in a course numbered THTR 499 bearing the description "Senior Performance Project." (Joint Stipulation, ¶ 9). According to IPFW's catalog description "all theatre majors will register for this course, which serves as the curricular capstone, during their final semester. Students will develop, with their advisor, a public performance or presentation appropriate to their area of emphasis." (Defendant's Exhibit A). For his senior project, Gilbert selected the Play with permission from IPFW faculty and plans (unless enjoined from doing so) to direct its performance at the IPFW Studio Theater.
The Theater Department has a mission statement providing that its mission is "to educate its students in the art, craft, and discipline of theatre, and is based on the belief that both production and classroom study are necessary components of a theatre education." (Defendants' Exhibit B).
Gilbert moved to intervene in this action but this motion was denied by the undersigned on July 12, 2001.
Larry Life ("Life") is employed by IPFW as a full professor of theater and Chair/Artistic Director of the Department of Theater. (Joint Stipulation, ¶ 7). In his capacity as Chair/Artistic Director, Life is responsible for supervising all activities in the Department. ( Id.). Life testified that a student enrolled in THTR 499 must complete a "Senior Project Proposal Cover Sheet" which inquires of the student the reasons for selecting a particular project and how that student is prepared to undertake the project. This form is then submitted to a board of five Theater Department faculty members, which includes Life, for their review. According to Life, in approving a work proposed by students enrolled in THTR 499, the Theater Department relies on the neutral criteria provided by the student on the form and does not evaluate the viewpoint of the proposed work. Life further testified that the Department has never evaluated the viewpoint of a work proposed by a student as part of the THTR 499 course requirement and the Department remains viewpoint neutral" as to all theater productions.
Life has worked actively with Gilbert in the production of the Play, consulting with him after a rehearsal and, at other times, regarding the technical and dramatic aspects of the direction of the Play. (Joint Stipulation, ¶ 16). Life testified that this aid, is essentially "volunteer work" in that he is not required under his contract with IPFW to advise students in the summer months. Life intends to attend each rehearsal of the Play and "make suggestions" to Gilbert as to the presentation of the Play and the technical and dramatic aspects of the direction of the Play. (Id.)
Eleven of the thirteen actors in Corpus Christi are students who voluntarily auditioned for the Play. The remaining two actors are volunteers from the Fort Wayne community. Other students have volunteered to serve as lighting, set and costume designers, stage hands and ushers. (Joint Stipulation, ¶ 8). In addition, Gilbert has raised $3,000 to pay for certain costs of the Play including scripts, royalties, costumes, and props. Private donors have also provided money for two County Police officers to provide security during the six performances of the Play. The remainder of the security will be provided by IPFW through its operating budget. IPFW has invited the public to purchase tickets and attend the Play by way of a season brochure authorized and distributed by IPFW. (Joint Stipulation, ¶ 19). This brochure was funded by non-taxpayer university funds.
Corpus Christi is one of nine plays that IPFW plans to stage during the 2001-2002 theater season. The others include: Bye Bye Birdie, by Michael Stewart, Charles Strouse and Lee Adams; The Rivals, by Richard Sheridan; Atlas's Cigar, by Betsy Breitenbach; Protest, by Vaclav Havel; Harvey, by Mary Chase; Picasso at the Lapine Agile, by Steve Martin; The Vagina Monologues, by Eve Ensler, On the Town, by Leonard Bernstein; and Tennessee Williams: The Foolish Dreamer, devised by Larry Life. (Joint Stipulation, ¶ 11). All of these plays were chosen without regard to their viewpoint.
Aside from its general theater season, IPFW also permits outside groups to utilize the Studio Theater so long as their use complies with the educational mission of the school. To date, only one outside group has utilized the Studio Theater, a group of high school students from the drama department at North Side High School in Fort Wayne. Life testified that the students were permitted to utilize Studio Theater without regard to the viewpoint of their drama presentation. He further testified that any group that desires to use Studio Theater would be permitted to do so without regard to the viewpoint of the group's presentation. IPFW Chancellor Michael Wartell ("Wartell"), likewise testified that the Studio Theater was open to outside groups without regard to the content of the speech which would occur there.
During argument, Defendants' counsel stated "the evidence in this case is that the forum of the theater has been and there's a policy allowed to be open to the public. It is limited. It has to meet the educational mission of the university."
The plays presented at IPFW are chosen without the intervention of Wartell. (Joint Stipulation, ¶ 22). Wartell did not read the script of the Play and did not interfere with the decision of the Theater Department to stage the Play as an academic offering. (Joint Stipulation, ¶ 23). Wartell testified that if a play "is brought up through the theater department in standard form" he would not stop it, no matter its content, unless the content was illegal. (Joint Stipulation, ¶ 25). According to Wartell, this is because there is "a general university policy, universities around the world actually, of academic freedom where administrators do not interfere with either how or what subject matter is taught in the classroom."
As a result of the controversy surrounding the Play, IPFW has taken affirmative steps to convey to the community the lack of university sponsorship of the Play. The playbill for the production will contain the following disclaimer: "This play was selected for its artistic and academic value. The selection and performance of the play do not constitute an endorsement by Indiana University Purdue University Fort Wayne or Purdue University of the viewpoints conveyed by the play." IPFW has also taken steps to permit organizations objecting to the viewpoint of the Play to make that objection known by passing out informational letters to those attending the Play. (Defendants' Exhibit D). Finally, IPFW has agreed to sponsor a public forum permitting open discussion of all viewpoints occasioned by the Play in the middle of the scheduled performance week.
DISCUSSION
The Establishment Clause of the First Amendment provides that "Congress shall make no law respecting an establishment of religion . . ." The Fourteenth Amendment imposes this substantive limitation on the legislative power of the States, see Wallace v. Jaffree, 472 U.S. 38, 49-50 (1985). It is the Establishment Clause which "prevents the government from promoting or affiliating with any religious doctrine or organization." Freedom from Religion Found Inc. v. City of Marshfield Wisconsin, 203 F.3d 487, 490 (7th Cir. 2000). The Plaintiffs contend that the performance of the Play on IPFW's campus violates this general prohibition in that the state (acting through IPFW) is improperly endorsing an attack on their religion. This court's sole role is to determine, as a legal matter, whether a preliminary injunction should issue.
"A district judge asked to decide whether to grant or deny a preliminary injunction must choose the course of action that will minimize the costs of being mistaken." American Hospital Supply v. Hospital Products LTD., 780 F.2d 589, 583 (7th Cir. 1985). "Whether a preliminary injunction should be granted by a district court generally involves a four-part analysis." Mil-Mar Shoe Co. Inc. v. Shonac Corp., 75 F.3d 1153, 1156 (7th Cir. 1996). "The district court begins by considering whether the moving party has demonstrated: 1) a reasonable likelihood of success on the merits, and 2) no adequate remedy at law and irreparable harm if the relief is denied." Id. "If the moving party clears these hurdles, the court must then consider: 3) the irreparable harm the non-moving party will suffer if the injunction is granted balanced against the irreparable harm the moving party will suffer if the injunction is denied, and 4) the public interest, i.e., the effect that granting or denying the injunction will have on non-parties." Id.; accord Erickson v. Trinity Theater, Inc., 13 F.3d 1061, 67 (7th Cir. 1994); Wisconsin Music Net-work v. Muzak Ltd., 5 F.3d 218, 221 (7th Cir. 1993).
"This `sliding scale' approach followed in this circuit balances the degree of likelihood of success on the merits against the irreparable harms." Vencor, Inc. v. Webb,
33 F.3d 840, 845 (7th Cir. 1994). "Thus, the more likely the moving party will succeed on the merits, the less the element of irreparable harm must weigh in its favor." Id. "Similarly, the less likely that the party seeking the preliminary relief will have success on the merits, the greater the element of irreparable harm required to weigh the balance in its favor." Id. ( citing, Abbott Laboratories v. Mead Johnson Co., 971 F.2d 6, 12-13 (7th Cir. 1992). With these factors in mind, the Court now turns to the Plaintiffs' request for a preliminary injunction.
1. Plaintiffs' Likelihood of Success on the Merits
This case implicates two fundamental principles of our Constitution. The First Amendment requires caution from the government to "abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction," Rosenberger v. Rector and Visitors of University of Virginia, 515 U.S. 819, 827 (1995). At the same time, the First Amendment prohibits the government, through its speech, from "coerc[ing] anyone to support or participate in religion or its exercise, or otherwise act in a way which `establishes a [state] religion or religious faith oi' tends to do so.'" Lee v. Weisman, 505 U.S. 577 (1992) (quoting Lynch v. Donnelly, 465 U.S. 668, 678 (1984)). The Plaintiffs claim the latter has occurred in this case; the Defendants' assert the former is at work. It is this court's task to reconcile the two views.
The hallmark of the Establishment Clause inquiry is whether the government "convey[s] or attempt[s] to convey a message that religion or a particular religious belief is favored or preferred." Wallace, 472 U.S. at 70. "There is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect." Board of Education of the Westside Community Schools v. Mergens, 496 U.S. 226, 250 (1990). This distinction leads the court to the fundamental question presented by the parties in their arguments and briefs, that is, who is the speaker in this instance? This determination is critical for "when the government speaks, either directly or through private intermediaries, it is constitutionally entitled to make `content based choices' and to engage in viewpoint based funding decisions.'" Wells v. City and County of Denver, ___ F.3d ___ 2001 WL 765474 (10th Cir. July 2, 2001) (quoting Legal Serv. Corp. v. Velazquez, 121 S.Ct. 1043, 1048 (2001). In contrast, when the speech is private speech, the government may not regulate it in the same way it regulates its own speech, particularly where the government has evinced either "`by policy or by practice' any intent to open [school facilities] to `indiscriminate use . . .'" Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 270 (1988).
The Plaintiffs assert that the speech at issue here, i.e., performance of the Play, is government sponsored speech or, at the very least, speech which conveys a message of endorsement or disapproval of religion regardless of its actual purpose. Plaintiffs rely primarily on the fact that the speech will occur on government property and be aided by utilities paid for from a taxpayer funded university account, to support this assertion. However, "not every message delivered [on government property at government-sponsored school-related events] is the government's own." Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000). Indeed, the Supreme Court has upheld private religious speech on government property in numerous cases. See Good News Club v. Milford Central School, 121 S.Ct. 2093 (2001) (private Christian club permitted to meet on school property); Rosenberger, 515 U.S. 819 (university student organization which published Christian newspaper entitled to university funding the same as other student organizations); Lamb's Chapel v. Center Moriches Union Free School District., 508 U.S. 384 (1993) (church permitted to use school facilities for religious oriented film series on family values and child-rearing); Widmar v. Vincent, 454 U.S. 263 (1981) (members of registered religious group at state university permitted to use university facilities).
Plaintiffs distinguish these cases by claiming that the particular facts of this case demonstrate that the Studio Theater in Kettler Hall is a nonpublic forum. If they are correct, the test becomes that articulated in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) which requires this court to examine (1) whether the government activity in question has a secular purpose; (2) whether the activity's primary effect advances or inhibits religion; and (3) whether the government activity fosters an excessive entanglement with religion. Id. at 612-613. If they are wrong, the aforementioned cases ( Good News Club, Rosenberger, Widmar, and Lamb's Chapel) are controlling and foreclose their contention that the speech in this case gives the appearance of government endorsement of a religious (or anti-religious) viewpoint.
Having reviewed the evidence presented at the preliminary injunction hearing, the court concludes that the teachings of Good News Club, Rosenberger, Widmar, and Lamb's Chapel must inform the court's decision in this vase and, when the evidence is considered in light of those cases, it conclusively demonstrates that the plaintiffs have little chance of prevailing on the merits.
The evidence shows that IPFW has evinced by both policy and practice an intent to open the Studio Theater to both the student body and the public at large. As part of its theater department curriculum, IPFW permits students to utilize Studio Theater to stage a "public performance" thereby creating a limited forum for its students. In addition to making its theater open to its students, two university administrators testified that any group who desires to utilize Studio Theater would be permitted to do so on a viewpoint neutral basis so long as the group's activities comport with the educational mission of the university. At least one outside group, North Side High School's drama organization has done so. These facts, the court believes, clearly establishes that IPFW has created, at the very least, a limited public forum in the Studio Theater.
At oral argument, Plaintiffs' counsel stated that "[o]ne high school one time does not a limited open forum make." This court cannot agree. A forum does not becomes any less open simply because only one group chooses to take advantage of the opportunity to use it. See Summum v. Callaghan, 130 F.3d 906 (10th Cir. 1997) (Installation by private fraternal organization of monolith that espoused organization's views was sufficient to transform lawn of county courthouse into "limited public forum," for First Amendment purposes; by allowing access to one organization, county opened forum to at least some private expression); cf. Good News Club, 121 S.Ct. at 2107 n. 9 ("When a limited public forum is available for use by groups presenting any viewpoint, however, we would not find an Establishment Clause violation simply because only groups presenting a religious viewpoint have opted to take advantage of the forum at a particular time.").
Having created a public forum, IPFW may not discriminate against the viewpoint of those speaking within the very forum they created without violating the First Amendment's free speech guarantee. See generally, Good News Club, 121 S.Ct. 2093; Rosenberger, 515 U.S. 819; Lamb's Chapel, 508 U.S. 384; Widmar, 454 U.S. 263. The Supreme Court teaches that "a significant factor in upholding governmental [action] in the face of Establishment Clause attack is their neutrality towards religion." Good News Club, 121 S.Ct. at 2104 (quoting Rosenberger, 515 U.S. at 839). "[T]he guarantee of neutrality is respected, not offended, when the government, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse." Id.; see also Hedges v. Wauconda Community Unit School, 9 F.3d 1295, 1298 (7th Cir. 1993) (citing Widmar, Mergens, and Lamb's Chapel and stating that these cases "reject arguments that, in order to avoid the appearance of sponsorship, a school may restrict religious speech."). Viewpoint neutrality by the university is precisely what the evidence shows in this case. Life testified that viewpoint is never considered in determining theater productions nor is it a factor in approving particular student projects, such as the one in this case, or outside performances to be performed in the theater by other groups. Thus, the university has done all that the Constitution requires of it and it cannot be said to have violated the Establishment Clause. See Hedges, 9 F.3d at 1299 ("neutrality avoids problems under the establishment clause.").
The Seventh Circuit in Hedges also stated:
School districts seeking an easy way out try to suppress private speech. Then they need not cope with the misconception that whatever speech the school permits, it espouses. Dealing with misunderstandings — here, educating the students in the meaning of the Constitution and the distinction between private speech and public endorsement — is however, what schools are for.Hedges, 9 F.3d at 1299.
Plaintiffs emphasize, however, that the question in this case is whether there is a "perception or message of endorsement" occasioned by the Play's performance on a public university campus. In support of this proposition, the Plaintiffs analogize the instant case to cases where courts have found religious statues or monuments to violate the Establishment Clause when they are situated on government property, see County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573 (1989); Books v. City of Elkhart, 235 F.3d 292, 305 (7th Cir. 2000); American Jewish Congress v. City of Chicago, 827 F.2d 120 (7th Cir. 1987). In each of these cases, the courts concluded that because the religious statue or monument was situated in a building that was the heart of the city or county's government such as a municipal building or county courthouse, its placement created the perception of endorsement by the government itself. See County of Allegheny, 492 U.S. at 599-600 (creche displayed on the main and most beautiful part of the county courthouse perceived as promoting a government message, "no viewer could reasonably think that it occupies this location without the support and approval of the government."); American Jewish Congress, 827 F.2d at 128 (city's display of a creche during the holiday season in the lobby of the city-county building was "a setting where the presence of the government is pervasive and inescapable."); Books, 235 F.3d at 305 (finding monument of Ten Commandments displayed "at the seat of government" to be "`so plainly
under government ownership and control' that every display on its property is marked implicitly with governmental approval.").
What these cases, and many others, firmly hold is that the court must look to the unique facts and circumstances presented to determine whether a reasonable person would perceive the performance of the Play to be a government endorsement or attack on religion or a particular religious belief. Capitol Square Review and Advisory Board v. Pinette, 515 U.S. 753, 778 (1995). In each of the monument cases, there was no question that the facts and circumstances in those cases, particularly the location of the monument itself, created a perception of government endorsement. Taking into account the unique facts and circumstances of this case, however, the court concludes that the performance of this Play on a public university campus is not, as Plaintiffs' contend, akin to a monument's placement "at the seat of the government." Indeed, the fact that the Play will be performed on a state university campus greatly distinguishes it from the cases cited above and would not create the perception of government endorsement in a reasonable observer.
Having observed the Plaintiffs' testimony at the preliminary injunction hearing it is clear that they sincerely and validly perceive the performance of the Play to be a message attacking their religious beliefs. However, the endorsement inquiry is "not about the perceptions of particular individuals or saving isolated nonadherents from . . . discomfort." Good News Club, 121 S.Ct. at 2106. The law requires the court to go beyond the particularized perceptions of individuals and inquire into the mind of a reasonable observer "deemed aware of the history and context of the community and forum in which the religious [speech takes place]." Id.
A university setting is a place where "the State acts against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition." Rosenberger, 515 U.S. at 834. It is a "hub of ideas" and a place citizens traditionally identify with creative inquiry, provocative discourse, and intellectual growth. When considered in this context, the Play falls squarely within this general notion of subjects accepted by the public for a university. The key is isolating the fact that the university permits speech from the concept that it endorses all the speech it permits. Indeed, the Supreme Court instructs that "[t]he proposition that schools do not endorse everything they fail to censor is not complicated." Mergens, 496 U.S. at 250.
Even in the larger context of the university setting, it is clear that IPFW permits a wide array of speech, including pro-Christian speech, to take place on its campus. Chancellor Wartell testified that a Catholic Bishop performs mass weekly on campus, Campus Ministries is a Christian organization existing on campus and there are prayer groups that exist on campus.
Moreover, to the extent the university makes it clear that its recognition of the right to perform the Play is not an endorsement of the Play's viewpoint, it has isolated itself from the challenged speech, see Mergens, 496 U.S. at 251 ("To the extent a school makes clear that its recognition of respondents' proposed club is not an endorsement of the views of the club's participants, students will reasonably understand that the school's official recognition of the club evinces neutrality toward, rather than endorsement of, religious speech."), making it less likely that the public would interpret the Play as a government endorsement of its viewpoint. This is precisely what IPFW has done by placing a disclaimer in its playbill which reads: "This play was selected for its artistic and academic value. The selection and performance of the play do not constitute an endorsement by Indiana University Purdue University Fort Wayne or Purdue University of the viewpoints conveyed by the play," and permitting other organizations to distribute literature to theater-goers. In addition to these efforts, IPFW plans to hold a public forum in the middle of the Play's performance week to permit contrary viewpoints to be heard. Each of these efforts further emphasizes the lack of government sponsorship and endorsement of the speech to the public and highlights the academic exercise with which the university is charged under state law.
In sum, the open nature of the forum in this case in tandem with the history and context of the university setting in which the performance will occur highlighted by the steps the university has taken to disassociate itself from the speech in question leads to the conclusion that the Plaintiffs have failed to sustain their burden of demonstrating a substantial likelihood of success on the merits of their Establishment Clause claim.
2. Irreparable Harm for which there is no Adequate Remedy in the Law
The inquiry, however, does not end here. The court must weigh the likelihood of success on the merits against the allegation of irreparable harm to the Plaintiffs that might yield from the challenged conduct. Anyone observing the demeanor and testimony of the Plaintiffs at the hearing would easily discern that the Plaintiffs will suffer irreparable harm if the production goes forward. "Since undoubtedly we are a `religious people whose institutions presuppose a Supreme Being,' deep feelings are aroused when aspects of that relationship are claimed to violate the injunction of the First Amendment that government may make `no law respecting an establishment of religion, or prohibiting the free exercise thereof.'" School District of Abington Township v. Schempp, 374 U.S. 203, 230 (1963). It is equally clear that because this case involves deeply rooted spiritual beliefs and personal sentiment that there is no adequate remedy at law should a constitutional violation exist. Thus, plaintiffs have demonstrated a substantial likelihood of irreparable harm.
3. Balance of Interests
The balance of interests addresses the remaining two elements of the preliminary injunction inquiry; the irreparable harm the non-moving party will suffer if the injunction is granted balanced against the irreparable harm the moving party will suffer if the injunction is denied as well as the interests of non-parties, e.g., Abbott Laboratories v. Mead Johnson Co., 971 F.2d 6, 11-12 (7th Cir. 1992).
As the court indicated above, the consequences of erroneously denying injunctive relief are great in that the Plaintiffs will, without question, be irreparably harmed. In turn, the consequences of erroneously granting such relief are equally great in that the court would be requiring the Defendants to curtail the free speech rights of one of its students thereby causing irreparable harm. See Good News Club, 121 S.Ct. at 2106 ("There are countervailing constitutional concerns related to the rights of other individuals in the community. In this case, those countervailing concerns are the free speech rights of the Club and its members.").
There is likewise a threat of substantial harm to the public and local community should the court enjoin the Play's performance. The public has an interest in participating and viewing this controversial speech and in the free exercise of thoughts and ideas which this case implicates. This is of particular concern here given the slim chance Plaintiffs have of succeeding on the merits and so this factor, in addition to the harm to the Defendants if an injunction is granted, tends to weigh in favor of denying injunctive relief.
4. Application of Sliding Scale
Having analyzed each of the factors which must be established for issuance of a preliminary injunction, on balance, the court concludes that the Plaintiffs cannot prevail on their request for a preliminary injunction. Applying the flexible "sliding scale" as the court must, the court's preliminary view of the merits points strongly in favor of the Defendants and is counterbalanced by the irreparable harm to be suffered by the Plaintiffs. However, when the substantial risk of irreparable harm to non-parties and the public is factored into the equation, the balance tips in favor of denying the injunction.
CONCLUSION
The Plaintiffs' motion for preliminary injunction is DENIED.