United States District Court, M.D. Pennsylvania
September 13, 2005.
TAMMY KITZMILLER, et al. Plaintiffs
DOVER AREA SCHOOL DISTRICT, et al., Defendants.
The opinion of the court was delivered by: JOHN E. JONES, District Judge
MEMORANDUM AND ORDER
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Pending before the Court is a Motion for Summary Judgment ("the
Motion") (doc. 104) filed by Defendants on July 13, 2005. We will
deny the Motion for the reasons that follow.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY:
The factual background and procedural chronology of this case
has been set forth in prior orders and is well known to the
parties. The following brief recitation of that history is
sufficient for purposes of the Court's review of the pending
On December 14, 2004, Plaintiffs filed a complaint against
Defendants, Dover Area School District and Dover Area School District Board
of Directors (collectively "Defendants" or "DASD"), in the
United States District Court for the Middle District of Pennsylvania.
(See Rec. Doc. 1). On January 6, 2005, Defendants filed an
answer in the above-captioned case.
In the complaint, Plaintiffs assert that Defendants' October
18, 2004 resolution and November 19, 2004 press release
(collectively, "the Policy") facially and as applied violate the
Establishment Clause of the First Amendment to the United States
Constitution. (See Compl. at Count One). In addition,
Plaintiffs state that Defendants' Policy violates Art. 1, § 3 and
Art. III, §§ 15 & 29 of the Pennsylvania Constitution facially
and as applied. See id. at Count Two.
On July 13, 2005 Defendants filed the instant Motion which has
been briefed by the parties. On September 9, 2005 the Court heard
argument with respect to the Motion. The matter is therefore ripe
STANDARD OF REVIEW:
Summary judgment is appropriate if "there is no genuine issue
as to any material fact and . . . the moving party is entitled to
judgment as a matter of law." FED .R. CIV. P. 56(c); see also
Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir.
1990). The party moving for summary judgment bears the burden of
showing "there is no genuine issue for trial." Young v.
Quinlan, 960 F.2d 351, 357 (3d Cir. 1992). Summary judgment should not be granted when there
is a disagreement about the facts or the proper inferences which
a fact finder could draw from them. Peterson v. Lehigh Valley
Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982).
Initially, the moving party has a burden of demonstrating the
absence of a genuine issue of material fact. Celotex Corporation
v. Catrett, 477 U.S. 317, 323 (1986). This may be met by the
moving party pointing out to the court that there is an absence
of evidence to support an essential element as to which the
non-moving party will bear the burden of proof at trial. Id. at
Federal Rule of Civil Procedure 56 provides that, where such a
motion is made and properly supported, the non-moving party must
then show by affidavits, pleadings, depositions, answers to
interrogatories, and admissions on file, that there is a genuine
issue for trial. FED. R. CIV. P. 56(e). The United States Supreme
Court has commented that this requirement is tantamount to the
non-moving party making a sufficient showing as to the essential
elements of their case that a reasonable jury could find in its
favor. Celotex Corp., 477 U.S. at 322-23.
It is important to note that "the non-moving party cannot rely
upon conclusory allegations in its pleadings or in memoranda and
briefs to establish a genuine issue of material fact." Pastore
v. Bell Tel. Co. of Pa., 24 F.3d 508, 511 (3d Cir. 1994) (citation omitted). However, all inferences
"should be drawn in the light most favorable to the non-moving
party, and where the non-moving party's evidence contradicts the
movant's, then the non-movant's must be taken as true." Big
Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d
Cir. 1992), cert. denied, 507 U.S. 912 (1993) (citations
Still, "the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in
original). "As to materiality, the substantive law will identify
which facts are material." Id. at 248. A dispute is considered
to be genuine only if "the evidence is such that a reasonable
jury could return a verdict for the nonmoving party." Id.
We initially note that we will, where necessary, view the facts
and all inferences to be drawn therefrom, in the light most
favorable to the nonmoving party, Plaintiffs, in our analysis of
the pending Motion.
In the Motion, Defendants argue that the DASD's modest
curriculum change does not violate the Constitution. In addition,
Defendants assert that critically evaluating the theory of
evolution, mentioning "intelligent design" in a ninth-grade biology class, and referring students to a book in the library on
the subject of intelligent design do not violate the
Establishment Clause. "The curriculum change at issue advances
many secular educational purposes, and, given the undisputed fact
that only the Darwinian theory of evolution will actually be
taught in the ninth-grade biology class pursuant to
Pennsylvania's academic standards, DASD's selection and purpose
of Biology as its primary science text, and DASD's unequivocal
statement and disclaimer that intelligent design, creationism, or
religion will not be taught in this class, its principal or
primary effect neither advances nor inhibits religion." (Defs.'
Br. Supp. Mot. Summ. J. at 21-22). Accordingly, Defendants
contend that Plaintiffs' claims fail as a matter of law.
We initially note that the Establishment Clause of the
First Amendment of the United States Constitution provides that
"Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof." U.S. Const.
amend. I. As Defendants submit, the prohibition against the
establishment of religion applies to the states through the
Fourteenth Amendment. Selman v. Cobb County Sch. Dist., 2005 WL
82829, at *10 (N.D. Ga. Jan. 13, 2005) (internal citations
omitted); see also Wallace v. Jaffree, 472 U.S. 38, 49-50
In their submissions to the Court, both parties concede that
the applicable test to ascertain whether the challenged Policy is
unconstitutional under the First Amendment is that of Lemon v. Kurtzman, 403 U.S. 602 (1971)
("Lemon test"). See Edwards v. Aguillard, 482 U.S. 578
(1987) (applying Lemon test to strike down Louisiana's
"Creationism Act"); see also Epperson v. Arkansas,
393 U.S. 97 (1968) (considering the purpose and the primary effect of an
Arkansas statute forbidding the teaching of evolution in public
schools). As articulated by the Supreme Court, under the Lemon
test, a government-sponsored message violates the Establishment
Clause of the First Amendment if: (1) it does not have a secular
purpose; (2) its principal or primary effect advances or inhibits
religion; or (3) it creates an excessive entanglement of the
government with religion. Lemon, 403 U.S. at 612-13. As the
Lemon test is disjunctive, either an improper purpose or an
improper effect renders the Policy invalid under the
After a careful review of the record and viewing the facts and
all inferences to be drawn therefrom in the light most favorable
to the nonmoving party, as we must at this juncture, we hold that
genuine issues of material fact exist regarding whether the
challenged Policy has a secular purpose and whether the Policy's
principal or primary effect advances or inhibits religion,
despite Defendants' arguments to the contrary. Accordingly, summary judgment is not
warranted and Defendants' Motion shall be denied.
NOW, THEREFORE, IT IS ORDERED THAT:
1. Defendants' Motion for Summary Judgment (doc. 104)
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