Liberty Counsel fights for Santa Rosa County teachers in religious liberty case

Local school board & ACLU oppose intervention by Christian Educator’s Association

Nov 5, 2009
By JONI B. HANNIGAN
Florida Baptist Witness

VICTORY? Horatio Mihet (l) senior litigant for Liberty Counsel, and Frank Lay, principal at Pace High School, prevailed after Lay was charged with criminal contempt after asking another administrator to pray at an adult function at the school. Though he was found innocent of willfully disobeying a judge’s order in the case, more restrictive rules in place since then are at the center of the ongoing dispute. Joni B. Hannigan

ORLANDO (FBW)—The Santa Rosa County School District and the American Civil Liberties Union in December are together opposing a motion on behalf of Christian Educator’s Association International in a federal court case involving religious expression and prayer.

When administrators for the district in September walked out of federal court in Pensacola following victory in the highly publicized case, many believed the issue was put to rest.

It was not.

In December, the agreement forged between the ACLU and the district will be the center of a two-day hearing planned to hammer out whether CEAI has standing to represent district employees—some of whom believe they are being unnecessarily censored and their constitutional rights limited by new district rules.

CASE CONTINUES A federal case involving the constitutional rights of teachers to engage in religious expression or pray is continuing in Santa Rosa County. Joni B. Hannigan

According to Orlando-based Liberty Counsel’s senior litigant, Horatio Mihet, even though Pace High School principal Frank Lay and athletic director Robert Freeman were exonerated when a federal judge determined they did not intentionally violate her preliminary injunction to refrain from praying on school property (see “Judge rules in favor of Pace school officials on trial for meal prayer” Sept. 24), the current rules governing employee religious behavior and prayer are actually more restrictive.

“The Consent Decree that remains in effect in Santa Rosa County is a lot broader and more onerous than the preliminary injunction than those three individuals were accused of violating,” Mihet said. “The Consent Decree goes much further and infringes on the constitutional rights of teachers and staff in a breathtaking manner.”

Teachers and students in the classrooms are directly affected and they “voluntarily censor their expressions so that they do not become victims of the ACLU and they are doing that even now,” he said.

Because of the way the Consent Decree is worded, students in the district are afraid of getting their teachers in trouble—and teachers are afraid to say things to each other, lest they inadvertently cause problems for each other, Mihet said, citing “vague and ambiguous” statements the decree makes.

It’s not only the employees of the district, however, who ultimately are affected by the decree, Mihet said. The decree impacts third parties—parents and other adults on school property.

“That’s what the First Amendment abhors; a prior restraint on speech and self-censorship—out of fear and punishment,” Mihet said. “And, so, until that Consent Decree is changed or eliminated, the constitutional rights of teachers and staff and students in the Santa Rosa County School District are going to be infringed every day.”

Mihet told Florida Baptist Witness employees of the district said they fear they will “end up” like Lay, Freeman and Michelle Winkler. Lay and Freeman were charged with criminal contempt of court for offering an unplanned prayer before eating at an appreciation luncheon for adult boosters who supported a new athletic facility. Winkler, an administrative assistant, was charged and later found innocent of civil contempt after asking her husband to offer a prayer at an off-campus event honoring the school’s employee of the year.

The current rules in place, Mihet said, are meant to protect students from being unduly influenced by teachers, “presumably,” but instead “tramples on the rights of teachers, staff and students” by inhibiting them from talking about prayer, religious events, religious services, religious leaders, religious beliefs, religious congregations, or religious deities—among other expressions.

An extensive list of prohibitions is contained in the decree, which was accompanied by a letter from the district’s superintendent as a formal directive and as a court order, under the threat of disciplinary action or termination if the order is violated, as well as contempt charges by the court. The superintendent also states in the letter, dated May 22, 2009, the school board will not provide legal advice or representation using school board resources for “any violation” of the order.

The nine-page Consent Decree is a court order of an agreement entered into by the Santa Rosa County School District and the ACLU after the ACLU in 2008 filed a complaint against the district’s school board; Lay, in his
capacity as the principal at Pace High School; and the district’s superintendent, then John Rogers and now Tim Wydroskjck.

The original complaint, filed on behalf of two Pace High School students, asserted the district violated the U.S. Constitution’s Establishment Clause because some of its policies, practices and customs “endorse and promote religion” and “have the purpose or effect of advancing religion.”

STUDENTS Pace High principal Frank Lay is concerned students rights will be infringed. Joni B. Hannigan

The preliminary injunction—of which Lay, Freeman and Winkler were charged with violating, was issued in January of 2009, prior to the Consent Degree dated May 6, 2009. The decree specifies “the parties now wish to avoid further costly and protracted disputes and have agreed voluntarily … to enter into this agreement.”

It is the May 6, 2009, order, Mihet said, which sets out terms initiated by the ACLU and approved by the school board in March, which prompted district employees to ask Liberty Counsel to seek intervention on their behalf by the CEAI. Liberty Counsel filed a motion to intervene in the case July 1, 2009.

Though employees could seek legal remedies on their own, a 15-page pleading filed with the federal court Sept. 22 notes CEAI members “fear that doing so will subject them to retaliation” by the school board. The motion goes on to note the board has taken a “very public stand contrary to the position of CEAI’s members.”

In a July 13 e-mail to the Witness, Wyrosdick, expressed confidence in the constitutionality of the Consent Order which he signed along with Lay and a representative of the five-member school board.

Mihet said, however, Lay’s position on the matter has been complicated by the fact he was named in the original complaint filed by the ACLU—in his capacity as the principal at Pace High School.

This issue was misrepresented Sept. 17 in federal court in Pensacola, Mihet said, in the verdict when it was said that Lay admitted liability in the complaint by the ACLU—that Pace High School was guilty of illegal acts concerning influencing students towards Christianity and prayer. “With all due respect to the court, the court got that just flat wrong,” Mihet said.

The ACLU didn’t sue Lay personally, Mihet explained. They sued the office of the principal. So Lay, who was in federal court in September on personal contempt charges for violating a judge’s order, should not have been confused with Lay, the principal, who had been directed by the school board to sign the agreement on behalf of Pace High School, admitting liability in the case, Mihet said.

Mihet said after the September hearing he called Lay’s counsel and they “very much confirmed the fact this was never up to Mr. Lay, that Mr. Lay has no choice in the matter. So to say that he signed it voluntarily is just not correct.”

In the current intervention case, it’s even more noteworthy, Mihet said, that the office of the principal has its own separate counsel than that of the school board—and sometimes the two don’t agree. Mihet said in the intervention issue Lay’s counsel said the principal in his official capacity “does not object” to the CEAI seeking intervention and then reversed their decision after the school board attorneys spoke with the principal’s attorneys and the decision was made that the office of the principal “very much objects” to the intervention.

“That’s in fact what the attorneys did regardless of what Mr. Lay’s individual preference was,” Mihet said. “And so that just illustrates beautifully, no one’s asking Mr. Lay, the individual, what he believes or what he thinks, that all of these decisions are made at the top by the school board who has shaken hands with the ACLU.”

At the September hearing evidence was presented by the U.S. District Attorney that Lay signed the judge’s order issuing the Consent Decree and also that employees and teachers in the district had signed off on receiving a copy of the decree.

“The idea that this Consent Decree was assented to by teachers and staff, again, was erroneous and should be refuted,” Mihet said.

Signing simply meant they received a copy of the decree, Mihet said, not that they agreed with the decree. “No one ever asked the teachers what they thought, and if they did ask, they didn’t listen.”

In their comprehensive intervention pleading filed Sept. 22, prior to the court’s Dec. 2-4 hearing, Mihet said Liberty Counsel, on behalf of CEAI, is asking for the verdict to be set aside or vacated, or for the court to modify the decree to correct the problems that would restrict individuals’ constitutional rights.

Mihet said the court never did “carefully scrutinize” the Consent Decree, but was asked to enter it because the parties agreed to it.

“What we hope to accomplish in this intervention is to have that scrutiny, that careful scrutiny that is required by the First Amendment, before you purport to prohibit speech,” Mihet said.

Noting also the judge in federal court in September referenced the U.S. Supreme Court ruling made 50 years ago limiting prayer in public schools, Mihet said he believes subsequent rulings have been important as well.

“I think what the court has been saying is that the precedent does not bar all expression, all the time, just because it happens to take place within a public school,” Mihet said. “That is what this Consent Decree purports to do.”

In Santa Rosa County Schools, Mihet said, even if students are allowed to pray, for example, on their own, any teacher or staff member passing by, “would be obligated to disrespect that prayer by not doing anything that could be construed to be respecting it.

“You can’t bow your head, you can’t bow your knee, you can’t close your eyes, you can’t acknowledge it in any way shape or form, less someone think that you are endorsing religion and shoving it down somebody else’s throat,” Mihet said.

And if there is a natural disaster or a terrorist attack or someone learns a family member has passed away and becomes distraught inside the school building?

“God forbid something like that should ever happen because these teachers are forced into straight jackets where they have to have these poker faces anytime someone expresses a religious thought and cannot provide any aid and comfort ever,” Mihet said. “They can’t even say ‘bless you’ to somebody who sneezes.”

For documents in this case, go online to www.goFBW.com

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