NO. CV 03-1043 RB/LAM.
December 7, 2006.
Paul F. Weinbaum, Las Cruces, NM, pro se.
William R. Babington, Jr., Holt Babington, P., Las Cruces, NM, for Defendants.
MEMORANDUM OF DECISION
THIS MATTER comes before the Court on the parties' Stipulation of Facts (Doc. 166), filed November 17, 2006, Plaintiff's Findings of Fact and Conclusions of Law (Doc. 163), filed November 16, 2006, and Defendants' Proposed Findings of Fact and Conclusions of Law (Doc. 167), filed November 17, 2006, and a trial on November 27, 2006. Pursuant to Rule 52, the Court herein sets forth its Findings of Fact, Conclusions of Law, and its decision. Because the Court finds that Las Cruces' name is widely understood in the community to mean "the crosses," and that the Establishment Clause's strictures are otherwise satisfied, judgment, in favor of Defendants, shall be entered. See O'Connor v. Washburn Univ., 416 F.3d 1216, 1231 (10th Cir. 2005).
This case concerns whether — in Las Cruces, New Mexico — the Establishment Clause allows the display of three Latin crosses on public school property. See U.S. Const. amends. I, XIV. Following this Court's November 9, 2006 Memorandum Opinion and Order (Doc. 152), only two issues remained unresolved. Namely, whether an emblem affixed to Las Cruces Public School ("LCPS") maintenance-school vehicles and LCPS Policy # 424, as applied to the emblem and a permanent mural displayed inside Booker T. Elementary School ("BTW"), are unconstitutional.
On November 27, 2006, the Court held a bench trial on the remaining issues. Plaintiff (Paul F. Weinbaum) proceeded pro se; attorney William Babington represented Defendants (Las Cruces Public Schools, et al.). Having heard witness testimony, reviewed the parties' exhibits accepted into evidence at trial, heard Plaintiff's and defense counsel's respective arguments, and reviewed the trial pleadings and relevant law, the Court makes the following Findings of Fact and Conclusions of Law. See Fed.R.Civ.P. 52(a).
Because Plaintiff proceeded as a pro se litigant in the case at bar, his arguments and filings will be "construed liberally." Hall v. Belmon, 935 F.2d 1106, 1110 n. 3 (10th Cir. 1991) (noting that the Haines v. Kerner, 404 U.S. 519 (1972), rule "applies to all proceedings involving a pro se litigant"). Yet, the court's broad reading of Plaintiff's position is not without limits. Clearly, it is not "the proper function of the district court to assume the role of advocate for the pro se litigant." Id. at 1110.
II. FINDINGS OF FACT.
inter loci, El Pueblo del Jardin de Las Cruces, El Pueblo del Jardin de Las Cruces El Pueblo del Jardin de Las Cruces, cruz cruce cruces, Cruz las cruces, cruce los cruces. A. Maintenance-vehicle emblem. B. Policy # 424. inter alia, See infra before
The Court herein incorporates by reference its more lengthy findings regarding the Latin cross and Las Cruces, New Mexico's origins, see infra, set forth in its November 9, 2006 Memorandum Opinion and Order. (Mem. Op. Order [Doc. 152] 17-25.)
Spanish speakers will recognize that "jardin de las cruces," garden of the crosses, may well be a euphemism for a cemetery, lending further support for the notion that the name Las Cruces means "the crosses."
Photos of the emblem are attached as Appendix A. See infra app. A.
Jon Hunner, Ph.D, Associate Professor and Director of the Public History Program at New Mexico State University, was appointed to serve as an expert witness on the history of Las Cruces, including the historical context of the name, "Las Cruces," and the use of crosses within the community of Las Cruces. See Fed.R.Evid. 706; (Defs.' Ex. A (Hunner Report).).
The policy, in its entirety, is attached as Appendix B. See infra app. B.
Photos of the BTW mural are attached as Appendix C. See infra app. C.
III. CONCLUSIONS OF LAW.28 U.S.C. § 1331 42 U.S.C. § 1983 inter alia, First First I First Fourteenth Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 301 First McCreary County v. ACLU of Ky., 125 S. Ct. 2722 2742 See O'Connor, 416 F.3d at 1222 Van Orden v. Perry, 125 S. Ct. 2854 2869 Van Orden, 125 S. Ct. at 2869 Lemon v. Kurtzman, 403 U.S. 602 Utah Gospel Mission v. Salt Lake City Corp., 425 F.3d 1249 1258-59 Lemon O'Connor, 416 F.3d at 1224 Bauchman v. W. High Sch., 132 F.3d 542 551 Lynch v. Donnelly, Lemon Bauchman, 132 F.3d at 551 Lynch v. Donnelly, 465 U.S. 668 687-94 See O'Connor, 416 F.3d at 1224 see e.g., County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573 595 O'Connor, 416 F.3d at 1224 Bauchman, 132 F.3d at 551 actual O'Connor, 416 F.3d at 1224 Bauchman, 132 F.3d at 551 See id. Bauchman, 132 F.3d at 551-52 McCreary County, 125 S. Ct. at 2734 see also O'Connor, 416 F.3d at 1228 McCreary County, 125 S. Ct. at 2734 Santa Fe Indep. Sch. Dist., 530 U.S. at 308 120 S.Ct. 2266 Id. Santa Fe Indep. Sch. Dist., 530 U.S. at 308 See Skoros v. City of New York, 437 F.3d 1 23 O'Connor, 416 F.3d at 1227-28 See Skoros, 437 F.3d at 30 See id. See id. see also O'Connor, 426 F.3d at 1228 "Lemon excessive Utah Gospel Mission, 425 F.3d at 1261 Lemon, 403 U.S. at 613 Agostini v. Felton, 521 U.S. 203 233 Van Orden Lemon Van Orden, 125 S. Ct. at 2858-64 Lemon O'Connor, 416 F.3d at 1224 McCreary County Van Orden, Lemon See id. McCreary County Van Orden McCreary County, 125 S. Ct. at 2738 Van Orden, 125 S. Ct. at 2863 accord Capitol Square Review Advisory Bd. v. Pinette, 515 U.S. 753 771 Friedman v. Bd. of County Comm'rs of Bernalillo County, 781 F.2d 777 782 Van Orden, 125 S. Ct. at 2863 accord Robinson v. City of Edmond, 68 F.3d 1226 1231 and Van Orden, 125 S. Ct. at 2863 See Summum v. City of Ogden, 297 F.3d 995 1000 see also Doe ex rel. Doe v. Beaumont Indep. Sch. Dist., 173 F.3d 274 300 A. Maintenance-Vehicle Emblem. See O'Connor, 416 F.3d at 1225 McCreary County, 125 S. Ct. at 2733 See, e.g., Friedman, 781 F.2d at 780 King v. Richmond Co., 331 F.3d 1271 1277 accord McCreary County, 125 S. Ct. at 2735 King, 331 F.3d at 1277 Lynch, 465 U.S. at 690 quoted in Foremaster v. City of St. George, 882 F.2d 1485 1491 O'Connor, 416 F.3d at 1231 Bauchman, 132 F.3d at 555 accord Capitol Square Review Advisory Bd., 515 U.S. at 780 115 S.Ct. 2440 See supra E.g., Robinson v. City of Edmond, 68 F.3d 1226 Friedman, 781 F.2d 777 Harris v. City of Zion, 927 F.2d 1401 Webb v. City of Republic, 55 F. Supp. 2d 994 ACLU of Ohio v. City of Stow, 29 F. Supp. 2d 845 Murray v. City of Austin Murray v. City of Austin, 947 F.2d 147 Murray See Webb, 55 F. Supp. 2d at 1000 Murray); accord Robinson, 68 F.3d at 1232 Murray Robinson, 68 F.3d at 1230 O'Connor, 416 F.3d at 1228 Lynch, 465 U.S. at 671 681-82 685 Cf. Robinson, 68 F.3d at 1232 Friedman], Harris], id. Harris, 927 F.2d at 1412 Cf. Bauchman, 132 F.3d at 555 public Summum, 297 F.3d at 1010 Good News Club v. Milford Cent. Sch., 533 U.S. 98 See Robinson, 68 F.3d at 1231 See id. See O'Connor, 416 F.3d at 1228 Cf. Murray, 947 F.2d at 150 Cf. Stone v. Graham, 449 U.S. 39 42 O'Connor, 416 F.3d at 1229 see generally Van Orden, 125 S. Ct. at 2876 See O'Connor, 416 F.3d at 1231 Bauchman, 132 F.3d at 555 principle primary Lemon Bauchman, 132 F.3d at 556 See id. see supra See Bauchman, 132 F.3d at 556 See Utah Gospel Mission, 425 F.3d at 1260 see generally Marchi v. Bd. of Coop. Educ. Servs., 173 F.3d 469 476 Ams. United for Separation of Church State, 980 F.2d 1538 1544 require B. Policy # 424. Capitol Square Review Advisory Bd, 515 U.S. at 764 id. Bauchman, 132 F.3d at 554 Sch. Dist. v. Schempp, 374 U.S. 203 225 83 S.Ct. 1560 10 L.Ed.2d 844 Florey v. Sioux Falls Sch. Dist. 49-5, 619 F.2d 1311 1315-16 Santa Fe Indep. Sch. Dist., 530 U.S. at 302 Lee v. Weisman, 505 U.S. 577 587 1. Policy # 424, as applied to the maintenance-vehicle emblem. See supra 2. Policy # 424, as applied to the Booker T. Elementary mural. See Bauchman, 132 F.3d at 552-53 see generally Fleming v. Jefferson County Sch. Dist. R-1, 298 F.3d 918 926 O'Connor, 416 F.3d at 1225 McCreary County, 125 S. Ct. at 2733 O'Connor, O'Connor, 416 F.3d at 1225 Bauchman, 132 F.3d at 553 Lynch, 465 U.S. at 690 quoted in Foremaster, 882 F.2d at 1491 endorsement Skoros, 437 F.3d at 47 Lynch, 465 U.S. at 690 accord Van Orden, 125 S. Ct. at 2863 cf. O'Connor, 416 F.3d at 1228 see generally Good News Club, 533 U.S. at 114 Bd. of Educ. of Westside Cmty. Sch. v. Mergens, 496 U.S. 226 251 See supra See Bauchman, 132 F.3d at 551 560 See supra See supra Murray v. City of Austin See supra public See O'Connor, 416 F.3d at 1228 Lynch, 465 U.S. at 692 O'Connor, 416 F.3d at 1228 Lynch, 465 U.S. at 671 681-82 685 Cf. O'Connor, 416 F.3d at 1229 Cf. Washegesic v. Bloomingdale Pub. Schs., 33 F.3d 679 681 683-84 Joki v. Bd. of Educ., 745 F. Supp. 823 831 cited in O'Connor, 416 F.3d at 1229 see also Freedom from Religion Found., Inc. v. City of Marshfield, 203 F.3d 487 495 See Bauchman, 132 F.3d at 556 see supra See Bauchman, 132 F.3d at 556 O'Connor, 416 F.3d at 1229 See id. Bauchman, 132 F.3d at 555 principle primary See, e.g., Linnemeir v. Bd. of Trs. of Purdue Univ. 260 F.3d 757 758-59 See Wagoner v. Wagoner, 938 F.2d 1120 1122 see also 54 See Walker v. United Parcel Serv., Inc., 240 F.3d 1268 1272 Hilst v. Bowen, 874 F.2d 725 726 Schlussler-Womack v. Chickasaw Tech. Prods. Inc., Adams v. Reliance Standard Life Ins. Co., 225 F.3d 1179 1186 Brumark Corp. v. Samson Res. Corp., 57 F. 3d 941 948 1. Jurisdiction arises under (2000). 2. Plaintiff brought this case pursuant to (2000), alleging, that Defendants' use of an emblem and Defendants' Policy # 424, as applied to a mural, violate the Establishment Clause of the Amendment. 3. The Religion Clauses of the Amendment provide: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ." U.S. Const. amend. . The Amendment applies to "the States and their political subdivisions" through the Amendment. , (2000). 4. "The Amendment contains no textual definition of `establishment'"; the term is "not self-defining." , (2005). 5. "Establishment Clause questions are heavily dependent on the specific context and content of the display." (citing , (2005) (Breyer, J., concurring in the judgment)). Resolving such claims is, necessarily, "fact-intensive." (Breyer, J., concurring in the judgment). 6. The "traditional standard" for Establishment Clause analysis is the three-part test articulated by the Supreme Court in (1971). , (10th Cir. 2005) (internal quotation marks and citations omitted). The test provides that "`government action does not violate the Establishment Clause so long as it (1) has a secular purpose, (2) does not have the principal or primary effect of advancing or inhibiting religion, and (3) does not foster an excessive entanglement.'" (quoting , (10th Cir. 1997)). 7. In Justice O'Connor crafted a concurring opinion in which she "refine[d] the analysis to focus more on whether the government is `endorsing' religion." (citing , (1984)). Justice O'Connor's "endorsement test" has proven to be a sound analytical framework for evaluating governmental use of religious symbols. ; , (1989) (employing "endorsement test" in analyzing holiday display featuring crèche and Chanukah menorah). 8. The "endorsement test" provides that the "`government impermissibly endorses religion if its conduct has either (1) the purpose or (2) the effect of conveying a message that religion or a particular religious belief is favored or preferred.'" (quoting ). a. Purpose probes "whether the government's purpose is to endorse or disapprove of religion." (emphasis added) (quoting ). b. Effect considers "whether a reasonable observer aware of the history and context" underlying a particular claim would conclude that it "had the effect of favoring or disfavoring a certain religion." at 1227-28 (citing ). c. Both the purpose and effect prongs are analyzed through the eyes of an "objective observer." ; . An objective observer "takes account of the traditional external signs that show up in the `text, legislative history, and implementation . . .' or comparable official act." (quoting , ). The objective observer is "presumed to be familiar with the history of the government's actions and competent to learn what history has to show." at 2737 (citing ). d. The identity of the "reasonable observer" — "whose perceptions determine whether the government acts with a purpose and effect that violates the Establishment Clause" — is critical. , (2d Cir. 2006); . Where, as here, an Establishment Clause challenge arises out of the elementary and primary school context, "special concerns arise in the identification of a reasonable observer." . Notwithstanding the fact that Plaintiff's claims arise out of the public schools setting, however, it is clear that the reasonable observer is an adult: "young schoolchildren cannot satisfy the requirements" of the Supreme Court's reasonable observer. at 24. As such, the Court casts an adult in this role "who, in taking full account of the policy's text, history, and implementation, does so mindful that" the challenged practices arise in the primary and secondary public school context. at 23; ("reasonable observer" profiled as having broad and significant familiarity with the content and context, including the history and implementation, of the challenged practice). e. Entanglement, 's final prong," mandates "that a challenged governmental action `must not foster an government entanglement with religion.'" (emphasis added) (quoting ). Contacts between the government and religion are only impermissible if they are so extensive that they have "the effect of advancing or inhibiting religion." , (1997). 9. While the Supreme Court's plurality opinion in upheld a Ten Commandments display without mentioning the factors or the endorsement test, (plurality opinion), the high court has not overruled and "it remains binding law." . Indeed, post- and the Tenth Circuit has continued to apply the factors, as modified by the endorsement test. 10. The Latin cross — like the Ten Commandments at issue in and — is undeniably religious. ; (plurality opinion); , (1995) (Thomas, J., concurring) (recognizing the cross as "one of the most sacred of religious symbols"); , (10th Cir. 1985) (en banc) ("The religious significance of the cross . . . is undisputed."). 11. In this case, therefore, the crosses incorporated in the emblem and the mural have obvious "religious significance." (plurality opinion); , n. 9 (10th Cir. 1995) (recognizing that "a Latin cross" is "a very familiar religious symbol"). 12. At the same time, religious symbols can have both religious secular meaning. (plurality opinion). 13. To prevail, Plaintiff must evidence that Defendants' use of an emblem and Policy # 424, as applied to the emblem and a mural, constitute Establishment Clause violations. , (10th Cir. 2002); , (5th Cir. 1999) ("plaintiffs bear the burden of proof on their Establishment Clause claim"). For the reasons that follow, Plaintiff failed to meet this burden. 14. Plaintiff did not prove that the maintenance-vehicle emblem lacks a genuine, secular purpose. a. There is no evidence that the emblem's adoption, or its continued use, was motivated by Defendants' desire to endorse or advance Christianity. (quoting ). b. Making LCPS maintenance vehicles readily identifiable is a legitimate, secular purpose. n. 3 (declining to "explicitly reject" the defendant's stated secular purpose for the challenged city seal, namely: "county identification"). c. While Defendants' research was not as exhaustive as the Court would have expected, there is no historical evidence that suggests that anything other than Defendants' stated secular purpose precipitated the emblem's adoption and its continued use. d. The lack of more detailed information "does not mean . . . that the government fails the purpose prong in cases in which there is no available evidence of the original intent for adopting a practice." , (11th Cir. 2003); (noting that "Establishment Clause analysis does not look to the veiled psyche of government officers" and that, if government actors' religious motive is not apparent to the objective observer, then, "without something more," the "government does not make a divisive announcement that in itself amounts to taking religious sides"). In any event, when there is no evidence of the original purpose for adopting a practice, the government may propose possible secular justifications for the challenged practice. . 15. Plaintiff did not prove that the emblem has the primary effect of endorsing religion. a. The endorsement test's "effect" analysis probes "whether, irrespective of the government's actual purpose," the challenged display "conveys a message of endorsement." , , (10th Cir. 1989). Effect is a "question of law" for the Court, which is determined "without reference to the reactions of individual viewers." n. 7 (citing ); , (O'Connor, J., concurring in part and concurring in the judgment) (explaining that the reasonable observer standard does not ask whether "a particular viewer of a display might feel uncomfortable"). b. A reasonable observer of the emblem affixed to LCPS maintenance vehicles would understand the crosses incorporated therein to symbolically represent Las Cruces — a uniquely named geopolitical subdivision — rather than an endorsement of Christianity. i. While Latin crosses have obvious and profound religious significance, in Las Cruces they have both religious and secular meaning. Conclusions of Law 10-12. ii. Las Cruces' name distinguishes this case from a number of cases in which government seals or logos incorporating the Latin cross have been struck down as unconstitutional. (10th Cir. 1995); (10th Cir. 1985); (7th Cir. 1991); (W.D. Mo. 1999); (N.D. Ohio 1998). Unlike the instant matter, the local governing bodies in those cases necessarily made choices unrelated to the name of the entity itself in selecting symbols (or seals) to represent their city or county. In their decision-making, the governing bodies revealed attitudes and beliefs which impermissibly crossed the establishment line. iii. Las Cruces' name makes this case more analogous to where the Court of Appeals for the Fifth Circuit upheld the City of Austin, Texas' official logo, notwithstanding its inclusion of a Latin cross. (5th Cir. 1991). As in — where the "connection between the state of Texas, the city of Austin, and Stephen F. Austin" was readily apparent and beyond dispute — the link between Las Cruces and three crosses is "unparalleled." (construing (same). Further, in both and this case, the name of the city drove the adoption of the contested symbol that, symbolically, reflects that name. c. A reasonable observer — that is, "the average receiver of the government communication or average observer of the government action," (internal quotation marks and citations omitted) — would not find that the emblem's "particular physical setting" had the effect of endorsing religion. (citing , , ). i. The most prominent aspect of the emblem's design is the text that reads "Las Cruces Public Schools" due to its large size. ii. The crosses incorporated in the emblem are quite small. (noting that, "[l]ike Bernalillo County's seal [at issue in and the seals of Zion and Rolling Meadows [at issue in the cross is a prominent feature of the Edmond seal."); at 1233 (rejecting — where no obvious connection between the city's name and the Latin cross existed — the notion that the religious message conveyed by a cross incorporated in a city seal was "neutralized" by presence of secular imagery); (same). iii. The emblem itself makes it clear that the vehicles to which it is affixed are publically owned. (finding that a reasonable observer would be aware that "the Choir represents one of Salt Lake City's high schools and is comprised of a diverse group of students" (emphasis added)). In Las Cruces, a reasonable observer would find this pivotal to the meaning of the crosses incorporated in the emblem. iv. The crosses' mere presence does not, per se, undermine the emblem's constitutionality. The emblem's legality does not turn on how Plaintiff personally perceives the emblem; the constitutional yardstick is the reasonable observer. Again, the Court emphasizes that there is no evidence of "`coercive pressure' imposed" by the emblem on the LCPS community. (quoting , 100 (2001)). d. A reasonable observer would not find that the emblem "pervades the daily lives" of Las Cruces residents. (internal quotation marks and citation omitted). i. Unlike government seals previously struck down by the Tenth Circuit and other courts of appeal, the LCPS emblem does not "appear on all [LCPS] paper work, on all [LCPS] vehicles, [and] . . . [LCPS personnel] uniforms." at 782. This factor weighs against "a finding of state endorsement." . ii. Although the emblem is permanently affixed to LCPS' thirty-five maintenance vehicles, which travel between LCPS properties, the vehicles are not so great in number that a reasonable observer would find the emblem pervasive in Las Cruces. (upholding seal containing cross where the challenged insignia was "used on police cars and other city vehicles, letterhead, monthly utility bills, uniforms of city employees, including police and firefighters, on the wall of the city council chambers, and on or in many city-owned buildings, parks, and recreation centers."). iii. A reasonable observer would find it material that school children's exposure to the emblem is limited. , (1980) (striking down Kentucky statute requiring the display of the Ten Commandments in each public classroom statewide). e. These facts and conclusions, taken together, would "lead the reasonable observer to conclude that the state did not intend to endorse a particular religious message." (citations omitted); (Stevens, J., dissenting) (recognizing that "a religious symbol may at times become an important feature of a familiar landscape or a reminder of an important event in the history of a community."). Nor would a reasonable observer perceive the emblem to be a state-sponsored endorsement of Christianity. ; (endorsement test requires plaintiff to "allege facts indicating" the challenged practices "have a or effect of advancing or endorsing religion" (emphasis in original)). 16. Plaintiff did not prove that the emblem fosters excessive government entanglement. a. The Tenth Circuit has noted that "['s] entanglement analysis typically is applied to circumstances in which the state is involving itself with a recognized religious activity or institution." . b. There is simply no evidence indicating any involvement between Defendants and any religious activity or entity in relation to the selection or continued use of the emblem on LCPS maintenance vehicles. c. As such, and having concluded that the emblem survives the endorsement test, Conclusions of Law 14-15, the Court concludes that a reasonable observer would also find the selection and display of the emblem amount to "religiously neutral" choices. . 17. Accordingly, Plaintiff did not prove that LCPS' maintenance-vehicle emblem violates the Establishment Clause. A reasonable observer would "perceive [Defendants] to be acting neutrally" toward religion in its use of the maintenance-vehicle emblem. (internal quotation marks and citation omitted); , (2d Cir. 1999) (recognizing that the Supreme Court's jurisprudence dictates that: "when courts adjudicate claims that some governmental activity violates the Establishment Clause, they must be careful not to invalidate activity that has a primary secular purpose and effect and only incidental religious significance"); , (6th Cir. 1992) (en banc) (upholding private, seasonal display of menorah in public forum) ("Even if this display appears similar in some respects to others that have been found unconstitutional in the past, other factors, unique to this case, may us to uphold the [defendant's] decision" (emphasis added)). 18. The Supreme Court, in addressing Establishment Clause challenges to public school policies involving religion, has "consistently held" that the government does not violate the Establishment Clause by "enact[ing] neutral policies that happen to benefit religion." (plurality opinion) (citations omitted); at 768 (citations omitted) ("policies providing incidental benefits to religion do not contravene the Establishment Clause"). 19. This principle extends with equal force to public schools. (citing , , , (1963), and , (8th Cir. 1980)). 20. This Court has previously found that Policy # 424 is, consistent with Supreme Court and Tenth Circuit precedent, a facially neutral policy. (Mem. Op. Order [Doc. 152] 55-57.) 21. Yet, because "`[i]t is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which establishes a [state] religion or religious faith, or tends to do so,'" (quoting , (1992)), it is not enough for Policy # 424 to be facially constitutional; it must also be constitutional in its application. 22. For the reasons stated above, the Court concludes that Policy # 424 is constitutional as applied to the maintenance-vehicle emblem. Conclusions of Law 14-17. 23. For the reasons that follow, the Court concludes that Policy # 424 is constitutional as applied to the BTW mural. The artwork does not constitute a violation of Policy # 424. 24. Plaintiff did not prove that the mural lacks a genuine, secular purpose. a. Defendants' stated secular purpose in displaying the mural was to provide educational assistance to students enrolled in the CYC after-school program, which provides "latch-key" children with an educational environment after school and on weekends. b. Providing arts-based educational opportunities to students is patently a secular purpose. ; , (10th Cir. 2002) (Free Speech and Free Exercise challenge) (noting, generally, "the deference to be accorded to school administrators about pedagogical interests"). c. Defendants' proffered purpose is genuine. (quoting ). d. In the Tenth Circuit made clear that the "purpose prong of the endorsement test focuses on the intent of the government actor in displaying a particular work of art, not on the intent of the artist in creating the work." n. 3 (citation omitted). This is especially true where, as here, the artists were primary school students. e. In any case, while young children are undoubtedly impressionable, Wolverton did not direct, or otherwise coerce, the students to draw or include three crosses in the mural. (declining to "infer an impermissible purpose or effect in the absence of any supporting factual allegations"). f. The multiple layers of oversight — both on sight at BTW and by LCPS Administrator Schutz — further corroborate the genuineness of Defendants' position that the mural's design originated with the children and the mural's purpose was to provide an arts-based educational experience for the students involved. g. Having examined the mural's available history exhaustively, the Court concludes that the mural was created by BTW students, and that the mural was created for a secular purpose. 25. Plaintiff did not prove that the mural's creation or display has the primary effect of endorsing religion. a. As previously noted, the "effect" analysis probes "whether, irrespective of the government's actual purpose," the challenged display "conveys a message of endorsement." , . b. Government-sponsored artwork that incorporates a religious symbol does not necessarily convey "`a message of or disapproval.'" (emphasis added) (quoting (O'Connor, J., concurring)); (plurality opinion); (challenged artwork, "one of thirty outdoor sculptures," was displayed as "part of a `typical museum setting'"); ("[T]he guarantee of neutrality is respected, not offended, when the government, following neutral criteria and even-handed policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse." (internal quotation marks and citation omitted)); , (1990) (secondary school) ("[T]here is little if any risk of official state endorsement or coercion where no formal classroom activities are involved and no school officials actively participate."). c. The mural's creation does not offend or violate Policy # 424, because Policy # 424 permits religious symbols to "be displayed . . . provided no effort is made to impose any particular beliefs which may be associated with such symbols." Finding of Fact 45. d. A reasonable observer of the mural — "aware of the history and context" of the forum — would understand the crosses incorporated in the artwork symbolically represent this uniquely named geopolitical subdivision, rather than an endorsement of Christianity. , . i. Three crosses have both religious and secular meaning in Las Cruces. Conclusions of Law 15(b). ii. Las Cruces' name distinguishes this case from a number of cases in which government seals or logos incorporating the Latin cross have been struck down as unconstitutional. Conclusion of Law 15(b)(ii). iii. Las Cruces' name makes this case more analogous to where the Court of Appeals for the Fifth Circuit upheld the City of Austin, Texas' official logo, notwithstanding its inclusion of a Latin cross. Conclusion of Law 15(b)(iii). iv. The mural is clearly student artwork and all of the images depicted obviously reflect either the Las Cruces community or BTW. e. A reasonable observer would not find that the mural's design had the effect of endorsing religion. i. A reasonable observer of the mural would be aware that: (1) the mural is a piece of artwork that students in the Court Youth Center's Safe After School Program created, with the help of Wolverton; (2) school officials were not actively involved in the project, other than to provide oversight; (3) the mural is accompanied by a commemorative plaque that reads "Booker T. Washington" and explains that the mural was funded by the DOE's 21st Century Community Learning Centers program; (4) the mural includes three center panels that feature images — the chiles and chile fields, three crosses, and yucca, respectively — which are commonly identified with, and widely familiar to residents of, the Las Cruces area, including primary school students. ii. A reasonable observer of the mural would also be aware that: (1) although the crosses depicted in the mural are centered, they appear in front of, what appear to be, the Organ Mountains and are accompanied by various other images commonly associated with the Las Cruces area; and (2) the mural is "book ended" by, what appears to be a student on the far left and, on the far right, a drawing of Booker T. Washington, BTW's namesake. iii. Notwithstanding its large scale, because the mural incorporates images indicative of BTW's students, BTW's namesake, and surrounding community, a reasonable observer would not perceive the mural to endorse religion. The fact that the mural is displayed at BTW, a school, is pivotal to the crosses' meaning and, thus, the mural's effect. iv. Viewed in this context, the BTW mural's design and physical setting, "though not neutralizing the religious content of . . . [the crosses], negates any message of endorsement of that content." (quoting (O'Connor, J., concurring)). f. A reasonable observer would not find that the mural's "particular physical setting" had the effect of endorsing religion. (citing , , ) (upholding prominently placed statue that was part of "museum setting."). The fact that the mural is not accompanied by other artwork does not demand a contrary conclusion. n. 5 ("Courts that have held particular works of art to violate the Establishment Clause have tended to focus on the relative isolation of the challenged work from other government-sponsored displays." (citations omitted)). Unlike instances in which courts of appeal have found that this factor triggered an Establishment Clause violation, here, the crosses incorporated in the BTW mural are part of a collage of images that are associated with Las Cruces, making it clear to the reasonable observer that the crosses symbolize the name Las Cruces. , , (6th Cir. 1994) (holding that a portrait of Christ in a public school violated the Establishment Clause when it was "not part of a group of paintings"); , (N.D.N.Y. 1990) ("[T]his is not a case where the school displays the painting as part of a student art exhibit."), n. 5; , (7th Cir. 2000) (finding that a fifteen-foot statue of Jesus Christ, erected in a public park, violated the Establishment Clause where the park "expressed only one message, which is the religious message conveyed by the statue," it "was created to display the statue, and the City present[ed] no evidence that other groups have ever used the park to present alternative messages"). 26. Plaintiff did not prove that the mural's creation or display fosters excessive government entanglement. a. There is no evidence that Defendants had any involvement with any religious activity or entity in relation to the BTW mural's creation or display. . b. As such, and having concluded that the mural survives the endorsement test, Conclusions of Law 24-25, the Court concludes that a reasonable observer would also find the creation, and continued display, of the mural to be "religiously neutral" choices. . 27. All of the foregoing, taken together, would "lead the reasonable observer to conclude that," in displaying the BTW mural, "the state did not intend to endorse a particular religious message." (citations omitted). A reasonable observer would perceive that the crosses incorporated therein symbolize the name Las Cruces. at 1231; (endorsement test requires plaintiff to "allege facts indicating" the challenged practices "have a or effect of advancing or endorsing religion" (emphasis in original)). 28. The fact that the mural is on permanent display at BTW is not to the contrary. First, again, there is no evidence of any efforts by Defendants or LCPS personnel to use the crosses incorporated in the mural to "impose" any Christian beliefs. Second, reading Policy # 424, Section C as a whole, it is clear that, to the extent a conflict exists between Part 1 and Part 3, Part 1 controls. Because the mural comports with Part 1, the mural does not violate Policy # 424, Section C. 29. Policy # 424 is constitutional as applied to the BTW mural. , , (7th Cir. 2001) (Posner, J.) ("If an Establishment Clause violation arose each time a student believed that a school practice either advanced or disapproved of a religion, school curricula would be reduced to the lowest common denominator, permitting each student to become a `curriculum review committee' unto himself. . . . Academic freedom and states' rights, alike demand deference to educational judgments that are not invidious" (internal quotation marks and citations omitted)). 30. Any proposed Finding of Fact or Conclusion of Law, submitted by the parties, inconsistent herewith is denied. 31. Having considered Plaintiff's "Motion to Alter or Amend per F.C.P.R. [sic] 59(e) Memorandum Opinion and Order (Doc. 152)" (Doc. 158), Plaintiff's "Motion to Amend" (Doc. 161), and Defendants' "Motion to Strike Plaintiff's Motion to Alter or Amend Per F.C.P.R. Rule 59(e) Memorandum Opinion and Order (Doc. 152)" (Doc. 159), the Court concludes that all three motions will be denied. a. The Court's November 9, 2006 Memorandum Opinion and Order "was obviously not a final judgment"; Plaintiff's Rule 59(e) motion is, thus, a premature motion to reconsider. , n. 1 (10th Cir. 1991); Fed.R.Civ.P. (b). b. The Court, nevertheless, will treat Plaintiff's motion — here, erroneously termed a "Rule 59(e)" motion — "as an effective Rule 59(e) motion" upon the entry of final judgment in a case. , (10th Cir. 2001) (citing , (10th Cir. 1989) (per curiam) ("Although Rule 59 motions are to be served not later than ten days after entry of judgment, courts and commentators generally agree that this ten-day limit sets only a maximum period and does not preclude a party from making a Rule 59 motion before a formal judgment has been entered.")). c. The "limited grounds [that] support a Rule 59(e) motion" include: (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice. 116 F. App'x 950, 954 (10th Cir. 2004) (citing , n. 5 (10th Cir. 2000), and , (10th Cir. 1995)). d. Plaintiff advances no grounds that warrant reconsideration. e. Accordingly, Plaintiff's motions will be denied; Defendants' motion will be denied as moot.
IV. Conclusion.Based upon the foregoing,
IT IS ORDERED that the Clerk of Court shall enter judgment in favor of Defendants and against Plaintiff's claim for relief based on violations of the Establishment Clause of the First Amendment. IT IS ORDERED that Defendants shall file a statement of their attorneys' fees within thirty (30) days hereof. Finally,
IT IS ORDERED that all other pending motions be DENIED as moot.
APPENDIX B Procedure #424 — RELIGION IN THE SCHOOLS Rev. 7.99Public schools have the responsibility to teach about religion but shall neither actively sponsor nor interfere with religions. The district recognizes that religion has played an undeniable role in the formation of world civilizations, the foundation of our country and the lives of its citizens. The place of religion in our society should be recognized as an important one.
The proper role of religion in the public schools is in its educational value and nonreligious observance or celebration. The schools can play a vital role in bringing about an understanding between peoples of different backgrounds. In that capacity and when appropriate within the curriculum, the schools are valuable in teaching our children about various belief systems. Belief systems will be discussed in an atmosphere of tolerance and mutual respect. Intercultural programs or curriculum focusing on the role that religion has played in history, literature or in the development of society and the influence that religion has had on historical figures or movements are acceptable and desirable. It is anticipated that students will also develop tolerance and mutual respect as they become aware of diverse belief systems and their current and historical impact on human culture.
A. RELIGION IN THE CURRICULUM
1. When religion is included in the curriculum as part of the study of art, literature, history, etc., it should be treated with the same objectivity and educational intent expected in other areas. Such studies should not foster any particular religious tenet or demean any religious belief.
2. Materials and activities should be sensitive to the diversity of belief systems.
3. Instructional activities addressing religion should meet the three-part test established by the Supreme Court to determine constitutionality:
a. The activity must have a secular purpose.
b. The activity's principal or primary effect must be one that neither advances nor inhibits religion.
c. The activity must not foster an excessive govern — mental entanglement with religion.
4. When the subject of religion occurs naturally in studying other topics such as history, literature, culture, etc., it should be treated as part of that study. (For example: Study of American Indians, the Pilgrims, Greek mythology or the Crusades may be enhanced by the inclusion of the role of religion.)
5. Student initiated responses to questions or assignments which reflect their beliefs or nonbeliefs about a religious theme will be accommodated when appropriate. (For example: Students are free to express religious beliefs or nonbeliefs in compositions, art forms, music, speech, and debate.)
6. Students should be taught to develop an appreciation of the value of religious liberty as guaranteed by the United States Constitution.
7. The teaching of theories to promote a religious doctrine is not permitted. Religious theories/beliefs shall not direct curriculum content.
B. RELIGIOUS HOLIDAYS, SCHEDULES, ABSENCES
1. The origin and significance of diverse holidays shall be presented in an unbiased manner without religious indoctrination. Holiday activities should not be religious in nature. These activities may include the singing of some holiday songs with religious content, but must also include a balanced variety of music not solely of a religious nature. Such programs shall not include performances of religious dramas.
2. Neither instructional materials nor assembly programs may be used to promote, encourage or denigrate specific religious groups or religious activities.
3. Religious celebrations outside of school shall not be endorsed by the school district or by school personnel in school.
4. The district's calendar shall be prepared so as to minimize conflict with religious holidays. Where con-flicts are unavoidable, care should be taken to avoid tests, special projects, introduction of new concepts and other activities which would be difficult to make up.
C. RELIGIOUS SYMBOLS
Definition: A religious symbol is any object which portrays or represents a religious belief. A religious symbol can also be an object which is so closely associated with religion(s) or with the celebration of a religious holiday that it is commonly perceived as being of a religious nature.
1. Religious symbols may be displayed or used as a teach-ing resource provided no effort is made to impose any particular beliefs which may be associated with such symbols. They may be used as examples of a culture and/or a specific religious heritage.
2. Whenever appropriate, teachers are encouraged in their presentations to expose students to symbols and tradi-tions from a variety of cultures.
3. Religious symbols may be displayed for show-and-tell or reports or class discussions as long as their appear — ance is volunteered by the students and as long as the symbols are removed from display upon completion of the report or discussion.
D. PERFORMANCES, CEREMONIES, PROGRAMS AND GATHERINGS
1. School programs, assemblies or gatherings sponsored by the school shall not have a religious orientation. How-ever, seasonal programs presented by school student groups may include religious music. Such programs shall include a balanced variety of music not solely of a religious nature.
2. The school district shall not conduct any baccalaureate service, nor shall it include religious invocations, benedictions or formal prayer at school sponsored events.
3. School musical groups may not participate, under the auspices of the school, in religious services.
1. No form of prayer, worship or expression of belief shall be prescribed or sanctioned in fact, or in appearance, by the schools.
2. Refer to Equal Access Procedure/Policy 338.
1. In working with students, school district staff shall not proselytize or inject personal religious beliefs into any school related activities.
2. Unwelcome attempts by individuals or groups or students to impose religious beliefs or convert others to religious beliefs or to nonbelief are not permitted in school related activities.
3. The distribution of religious literature on school district property, unless directly related to instruc-tional activities, is not permitted at any school related activities.
4. Non-student members of religious groups are not allowed in the school to proselytize or recruit during the school day or during school activities.
NOTE: CLUBS FORMED FOR RELIGIOUS PURPOSES See Equal Access, Policy 338.