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Cambridge Christian School, Inc. v. Florida High School Athletic Association, Inc.

United States District Court, M.D. Florida, Tampa Division

June 7, 2017

CAMBRIDGE CHRISTIAN SCHOOL, INC., Plaintiff,
v.
FLORIDA HIGH SCHOOL ATHLETIC ASSOCIATION, INC., Defendant.

          ORDER

          Charlene Edwards Honeywell United States District Judge.

         This cause comes before the Court upon the Report and Recommendation filed by Magistrate Judge Amanda Arnold Sansone on February 3, 2017 (Doc. 50). The Magistrate Judge recommends dismissal of Plaintiff Cambridge Christian School, Inc.'s (“Cambridge Christian”) Verified Amended Complaint (Doc. 8) and denial of Cambridge Christian's Motion for Preliminary Injunction (Doc. 9). All parties were furnished copies of the Report and Recommendation and were afforded an opportunity to file objections pursuant to 28 U.S.C. § 636(b)(1). Cambridge Christian filed an Objection (Doc. 55) to which Defendant Florida High School Athletic Association, Inc. (“FHSAA”) responded (Doc. 56).

         Upon consideration of the Report and Recommendation, this Court's independent examination of the file de novo, and a review of Cambridge Christian's Objection and the response thereto, it is determined that the Report and Recommendation should be adopted, confirmed, and approved.

         I. BACKGROUND

         The FHSAA is the nonprofit, governing organization for athletics in Florida's public schools. § 1006.20(1), Fla. Stat. (2016). It is a state actor. Private schools that wish to participate in high school athletic competitions with public high schools are permitted to become members of the FHSAA. Id. Cambridge Christian, whose athletic teams are referred to as the “Lancers”, is an independent, co-educational, private Christian school that participates in the FHSAA. Doc. 8 ¶¶ 10, 15, 25. The school has the religious mission “[t]o glorify God in all that [it does]; to demonstrate excellence at every level of academic, athletic, and artistic involvement; to develop strength of character; and to serve the local and global community.” Doc. 8 ¶ 11. Cambridge Christian's athletic department also has a mission statement, which states: “The Cambridge Christian School Athletic Department's chief end is to glorify Christ in every aspect of [its] athletic endeavors while using the platform of athletics to: Teach the Principles of Winning; Exemplify Christian Morals and Values in [its] Community; Achieve Maximum Physical, Moral and Spiritual Character Development; and Mentor Young Men and Women to Deeper Walk with Jesus.” Doc. 8 ¶ 14.

         As alleged in its Verified Amended Complaint, “[b]y long-standing tradition, Cambridge Christian student-athletes, their parents, and fans are led in prayer by a parent or student or member of the school faculty or administration before every Cambridge Christian sporting event.” Doc. 8 ¶ 16. They do so through use of its loudspeaker during home games, as well as at away games “when possible, ” and have done so in connection with Cambridge Christian's football program since it was founded in 2003. Doc. 8 ¶¶ 16-17. Use of the loudspeaker “allows the Cambridge Christian community to come together in prayer, ” which is not otherwise possible due to the size of the sports venues. Doc. 8 ¶ 18.

         During the 2015 football season, Cambridge Christian's football team succeeded in qualifying as a finalist for the FHSAA 2A division playoffs, competing against University Christian School, which has a similar mission and tradition of prayer to that of Cambridge Christian's. Doc. 8 ¶¶ 31, 34. This championship game was to be held at the Camping World Stadium (the “Stadium”) in Orlando, Florida.[1] Doc. 8 ¶ 2. Prior to the championship game, Cambridge Christian participated in a conference call with the FHSAA and, together with University Christian School, requested to use the Stadium's loudspeaker “to lead their attending students, families, and fans in a joint pre-game prayer.” Doc. 8 ¶ 38. Cambridge Christian indicated that the FHSAA allowed it and another Christian school to pray over the Stadium loudspeaker prior to the 2012 championship game. Id. The FHSAA denied the request. Doc. 8 ¶ 39.

         Following the conference call, Cambridge Christian's Head of School, Tim Euler, e-mailed the executive director of the FHSAA, Roger Dearing, requesting that Cambridge Christian be allowed to “honor their Lord before the game and pray” over the Stadium's loudspeaker. Doc.8 Ex. C-1. Mr. Euler advised that he or the pastor from University Christian School would be willing to “lead the fans, players, and coaches in prayer, ” and stated that he “d[id] not believe, with two Christian Schools playing, ” that his request was “unreasonable.” Doc. 8 Ex. C-1. The Head of School for University Christian School echoed this request. Doc. 8 Ex. C-2.

         After consulting with the FHSAA's legal counsel, Dr. Dearing responded to the Heads of Schools, informing them that he could not permit the schools to use the loudspeaker to pray. Doc. 8 Ex. D. His reasoning included that: (1) because the Stadium is a public facility, it was “off limits”; and (2) the FHSAA is a state actor that could not “legally permit or grant permission for” prayer over the loudspeaker. Doc. 8 Ex. D.

         The championship game was held on December 4, 2015, with approximately 1, 800 people in attendance. Doc. 8 ¶ 45. Before the game began, Cambridge Christian and University Christian School met at the 50-yard line to pray together. Doc. 8 ¶ 50. The prayer was not permitted to be broadcast over the loudspeaker and, because of this, the prayer was not audible to those in attendance. Doc. 8 ¶ 52. According to Cambridge Christian, the denial of use of the loudspeaker prevented “the students, parents, and fans in attendance the right to participate in the players' prayer or to otherwise come together in prayer as one Christian community.” Id.

         Nonetheless, other speech was not prohibited inside the Stadium. For instance, messages promoting corporate sponsors of the FHSAA were displayed along the perimeter of the field and displayed on the Stadium's video screen. Doc. 8 ¶¶ 46-47. In addition, such messages were announced over the Stadium's loudspeaker. Doc. 8 ¶ 48. At halftime, cheerleaders for Cambridge Christian and University Christian School performed shows, and utilized the loudspeaker to broadcast music for their respective performances. Doc. 8 ¶¶ 53-54. The music played by Cambridge Christian was chosen by the school, and originated from the cheerleading coach's smart phone. Doc. 8 ¶ 54.

         After the championship game, Dr. Dearing e-mailed a second response to the Heads of Schools, indicating that the Establishment Clause of the First Amendment to the United States Constitution prevented the government from engaging in activities that could be viewed as endorsement or sponsorship of religion. Doc. 8 Ex. E. Dr. Dearing advised that allowing the schools to use the loudspeaker would be contrary to jurisprudence prohibiting schools from giving the impression of endorsing religion by allowing prayer over a public-address system. Doc. 8 Ex.

         E. He further noted that Cambridge Christian and University Christian School were permitted, both before and after the football game, to pray. Doc. 8 Ex. E.

         In addition, following the championship game, the FHSAA issued a statement regarding prayer over public-address systems. Doc. 8 Ex. F. The FHSAA advised that Cambridge Christian and University Christian school had requested to use the system for prayer, and stated that it denied the request pursuant to Florida and United States Supreme Court law, but “presented alternative options for team prayers, including on-field prayer, ” which was accepted by the schools, resulting in the teams participating “in a personally lead [sic] on-field organized prayer prior to and following” the championship game. Doc. 8 Ex. F. It further explained that the FHSAA, “as host and coordinator of the event, is statutorily a ‘State Actor', and according to state and federal law, cannot legally permit or grant permission for the requested activity over the PA system.” Doc. 8 Ex. F. This policy forms the basis for Cambridge Christian's claims in this action.

         Additionally, the FSHAA Administrative Procedure, established by its Executive Director, includes a provision governing the “Public Address Protocol” during the state championship series. Doc. 8 Ex. A. The provision states that the announcer “shall be considered a bench official for all Florida High School State Championship Series Events, ” who “will follow the FHSAA script for promotional announcements, which are available from this association, player introductions and award ceremonies.” Doc. 8 Ex. A. Other announcements over the public address system are limited to those delineated by the provision, which includes “[t]hose of a ‘practical' nature (e.g., announcing that a driver has left his/her vehicle lights on), ” and “[m]essages provided by host school management.” Doc. 8 Ex. A.

         Based on the FHSAA's denial of its request to use the loudspeaker for prayer, and believing that the FHSAA's policy will affect it in the future, Cambridge Christian filed a seven-count Amended Verified Complaint. In Count I, Cambridge Christian alleged that the FHSAA's conduct constituted impermissible content-based and viewpoint-based discrimination, denying its right to freedom of speech and placing a substantial burden on its sincerely held religious beliefs in contravention of the First Amendment. Doc. 8 ¶¶ 60-72. In Count II, Cambridge Christian sought declaratory relief regarding whether the FHSAA's policy prohibiting religious speech over the loudspeaker violated Cambridge Christian's rights to freedom of religious exercise and freedom of speech. Doc. 8 ¶¶ 73-81. Count III also sought declaratory relief as to whether the Establishment Clause requires the FHSAA to prohibit prayer over the loudspeaker. Doc. 8 ¶¶ 82-90. Counts IV through VI mirrored the previous counts, except that they were raised under the Florida Constitution's Establishment Clause and guarantees of freedom of religion and speech. Doc. 8 ¶¶ 91-121. Finally, Count VII alleged a violation of section 761.03, Florida Statutes, which is Florida's Religious Freedom Restoration Act, because the FHSAA's conduct intentionally placed a substantial burden on Cambridge Christian's sincerely held religious beliefs in the absence of any legitimate government interest and in a manner that was not narrowly tailored to the least restrictive means of furthering such interest. Doc. 8 ¶¶ 122-27.

         Cambridge Christian filed the instant motion for preliminary injunction to enjoin the FHSAA from enforcing its policy of prohibiting religious speech over a loudspeaker during FHSAA-sponsored games. Doc. 9. The FHSAA moved to dismiss the Verified Amended Complaint with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6), alleging that Cambridge Christian could not state any claim for relief.[2] Doc. 26. The FHSAA also opposed Cambridge Christian's application for a preliminary injunction. Doc. 25.

         II. Standard

         When a party makes a timely and specific objection to a Magistrate Judge's Report and Recommendation, the district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C); Jeffrey S. v. State Bd. of Educ. of State of Ga., 896 F.2d 507, 512 (11th Cir. 1990). With regard to those portions of the Report and Recommendation not objected to, the district judge applies a clearly erroneous standard of review. See Gropp v. United Airlines, Inc., 817 F.Supp. 1558, 1562 (M.D. Fla. 1993). The district judge may accept, reject, or modify in whole or in part, the Report and Recommendation of the Magistrate Judge. Fed.R.Civ.P. 72. The district judge may also receive further evidence or recommit the matter to the Magistrate Judge with further instructions. Id.

         III. Discussion

         Cambridge Christian objects to the Report and Recommendation (“R&R”) for the following reasons: (1) the Magistrate Judge erred in recommending dismissal of its claims under the First Amendment's Speech Clause (Counts I-II), and the Florida constitutional corollaries (Counts IV-V), because it incorrectly concluded that the Public-Address Protocol allowed only the FHSAA announcer to use the loudspeaker and impermissibly ignored Cambridge Christian's well-pleaded allegations that the FHSAA denied Cambridge Christian access to the loudspeaker based on its religious viewpoint; (2) the Magistrate Judge erred in recommending dismissal of its Free Exercise Clause claim (Counts I-II), and the corollary claim under the Florida Constitution (Counts IV-V) because it ignored that communal prayer is an essential part of Cambridge Christian's religious practices; (3) the Magistrate Judge erred in recommending dismissal of its request for declaratory relief that neither the Establishment Clause nor the equivalent Florida Constitutional provision require the FHSAA to prohibit prayer from the loudspeaker (Counts III and VI) because Cambridge Christian's prayer would constitute private speech; (4) the Magistrate Judge erred in recommending its claim under the Florida Religious Freedom Restoration Act (“Act”) be dismissed because by denying Cambridge Christian use of the Stadium's loudspeaker, the FHSAA substantially burdened Cambridge Christian's religious exercise without any compelling state interest or demonstrating that it adopted the least restrictive means of achieving that interest; and (5) the Magistrate Judge erred in recommending that the Court deny its motion for preliminary injunction because it demonstrated a substantial likelihood of success on the merits, a substantial threat of irreparable injury, that the injury outweighs any threatened harm of the injunction to the FHSAA, and granting the preliminary injunction will not disserve the public interest. Doc. 55. Upon de novo review, the Court agrees with the conclusions in the R&R.

         A. The First Amendment[3]

         The Establishment and Free Exercise Clauses of the First Amendment to the United States Constitution prohibit Congress from making any “law respecting an establishment of religion, ” or “prohibiting the free exercise thereof, ” respectively. The First Amendment also contains the Free Speech Clause, which prohibits Congress from making any law “abridging the freedom of speech.” Although the First Amendment explicitly applies to the actions of Congress, the due process clause of the Fourteenth Amendment renders it equally applicable to the States. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 489 n.1, 116 S.Ct. 1495, 1501 n.1, 134 L.Ed.2d 711 (1996).

         1. The Free Speech Clause.

         The Free Speech Clause applies to government regulation of private speech. Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 467 (2009) (citing Johanns v. Livestock Marketing Ass'n., 544 U.S. 550, 553, 125 S.Ct. 2055, 161 L.Ed.2d 896 (2005). It does not, however, apply to the government's own expressive conduct. Id. Instead, the government “has the right to ‘speak for itself, ' ” id. (quoting Board of Regents of University of Wisconsin System v. Southworth, 529 U.S. 217, 229, 120 S.Ct. 1346, 146 L.Ed.2d 193 (2000)), and may “say what it wishes, ” id. (quoting Rosenberger v. Rector and Visitors of University of Virginia, 515 U.S. 819, 833, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995)). This is not curtailed by the fact that the government “receives assistance from private sources for the purpose of delivering a government-controlled message.” Id. Government speech must, nonetheless, comport with the Establishment Clause. Id. Here, the FHSAA seeks dismissal because announcements over the Stadium loudspeaker are government speech and the Public Address Protocol is a neutral policy that avoids state entanglement with religion. Cambridge Christian disagrees, claiming that the prayer would be private speech.

         Where the government is not the speaker, but instead supplies a forum where speech is conducted, the First Amendment and its Free Speech Clause do apply, and the degree of control that the government may exert over access to the forum depends on whether the forum is a public, designated public, limited public, or non-public forum.[4] Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 800, 105 S.Ct. 3439, 3448, 87 L.Ed.2d 567 (1985). Cambridge Christian does not argue that the Stadium is a public or designated public forum. Instead, it contends that if a forum analysis applies, the Stadium is a limited public forum, which is one where the government has reserved “for certain groups or for the discussion of certain topics.” Walker v. Tex. Div., Sons of Confederate Veterans, Inc., ___ U.S. ___, 135 S.Ct. 2239, 2250, 192 L.Ed.2d 274 (2015) (quoting Rosenberger, 515 U.S. at 829).

         The FHSAA, by contrast, argues that the Stadium is a nonpublic forum. In a non-public forum, the government “act[s] as a proprietor, ” and “manag[es] its internal operations.” Walker, 135 S.Ct. at 2251 (quoting Int'l Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678-79, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992)). The government may restrict speech based on content, but any restriction must be “reasonable and . . . not an effort to suppress expression merely because public officials oppose the speaker's view.” Cornelius, 473 U.S. at 800 (quoting Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983)). Additionally, “[t]he restrictions may ‘be based on subject matter and speaker identity so long as the distinctions are reasonable in light of the purposes served by the forum and are viewpoint neutral.' ” Searcey v. Harris, 888 F.2d 1314, 1319 (11th Cir. 1989). Thus, regardless of whether a forum is a limited public or non-public forum, viewpoint discrimination against private speech is impermissible under the First Amendment. Id. at 1325.

         Based on the above, the first relevant inquiry is whether all speech over the loudspeaker of the Stadium constitutes government speech, as was found by the Magistrate Judge. If it is not, and the Stadium loudspeaker is instead a forum provided by the government, then the Court must address whether the forum is a non-public or limited public forum, and whether the denial of access to the Stadium loudspeaker constituted viewpoint discrimination. Lee, 505 U.S. at 678 (explaining that a “forum based” approach is used “for assessing restrictions that the government seeks to place on the use of its property.”). For the reasons set forth below, the Court agrees with the Magistrate Judge that the entirety of the speech over the Stadium loudspeaker was government speech and that, even if it were not, the ...


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