Griffith v. Caney Valley Pub. Sch.

HAYDEN GRIFFITH, Plaintiff, v. CANEY VALLEY PUBLIC SCHOOLS, RICK PETERS, CLINT SUMNER, JOE LEWIS,JEANIE HUFFAKER, RON PRUITT, and SUE P. WOODS, Defendants.

Case No. 15-CV-273-GKF-FHM

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

May 21, 2015

AMENDED OPINION AND ORDER

Before the court is the Report and Recommendation of United States Magistrate Judge Frank H. McCarthy [Dkt. #19], in which the Magistrate Judge recommends that the court deny plaintiff Hayden Griffith's Motion for Preliminary Injunction [Dkt. #3].¹ Griffith has filed Objections to the Report and Recommendation [Dkt. #20]. For the following reasons, the court overrules Griffith's objections, accepts the Magistrate Judge's Report and Recommendation, and denies Griffith's Motion for Preliminary Injunction.

I. Background

Griffith, a member of the Delaware Tribe and the Cherokee Nation, is a senior at Caney Valley High School. She is scheduled to participate in a graduation ceremony on Thursday evening, May 21, 2015. In recognition of her upcoming graduation, an elder of the Delaware Tribe gave Griffith an eagle feather, an object which is sacred according to Griffith's Native American religious beliefs. As an expression of her beliefs, she wishes to attach the eagle featherto her graduation cap during her graduation ceremony. But the school prohibits all students from decorating their graduation caps, and has informed Griffith that she will not be permitted to participate in the ceremony if she attaches the feather to her cap during the ceremony. The school has offered to allow Griffith to wear the feather in her hair or on a necklace, or to carry the feather during the ceremony, but Griffith maintains it would be disrespectful and inconsistent with her religious beliefs not to wear the feather attached to the graduation cap.

Griffith contends that the school's policy of prohibiting decorations on graduation caps violates her rights under the First Amendment to the United States Constitution to free exercise of religion and to free speech. She also contends that the policy violates her rights under the Oklahoma Religious Freedom Act, Okla. Stat. tit. 51, § 251 et seq. ("ORFA"). She seeks a preliminary injunction prohibiting the school from enforcing the policy, thereby permitting her to wear the feather on her graduation cap during the graduation ceremony.

The Magistrate Judge held a hearing on Tuesday, May 19, 2015. On Tuesday evening, he issued his Report and Recommendation, in which he recommended that Griffith's motion be denied. Griffith filed her Objections to the Report and Recommendation yesterday morning, and the defendants filed their response early yesterday afternoon.

II. Standard of Review

This court must conduct a de novo review of the Magistrate Judge's Report and Recommendation. 28 U.S.C. § 636(b)(1) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made."); see also Northington v. Marin, 102 F.3d 1564, 1570 (10th Cir. 1996) ("De novo review is required after a party makes timely written objections to a magistrate's report. The district court must consider the actual testimony or other evidence in therecord and not merely review the magistrate's report and recommendations."). The court may "accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b).

III. Discussion

A preliminary injunction is an extraordinary remedy; therefore, a movant's right to relief must be clear and unequivocal. Dominion Video Satellite, Inc., v. Echostar Satellite Corp., 269 F.3d 1149, 1154 (10th Cir. 2001). To obtain a preliminary injunction, the movant bears the burden of showing: 1) a substantial likelihood of prevailing on the merits; 2) irreparable harm unless the injunction is issued; 3) the threatened injury outweighs the harm that the preliminary injunction may cause the opposing party; and 4) the injunction, if issued, will not adversely affect the public interest. Fed. Lands Legal Consortium v. United States, 195 F.3d 1190, 1194 (10th Cir. 1999).

Three types of preliminary injunctions are specifically disfavored: (1) preliminary injunctions that alter the status quo; (2) mandatory preliminary injunctions; and (3) preliminary injunctions that afford the movant all the relief that it could recover at the conclusion of a full trial on the merits. For these categories of disfavored preliminary injunctions, "the movant has a heightened burden of showing that the traditional four factors weigh heavily and compellingly in its favor before obtaining a preliminary injunction." Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Horne, 698 F.3d 1295, 1301 (10th Cir. 2012) (quoting Dominion Video Satellite, Inc., 269 F.3d at 1154-55). In his Report and Recommendation, the Magistrate Judge determined that Griffith's motion would involve each of these categories. [Dkt. #19, pp. 2-3]. Griffith did not object to this finding. Thus, the court finds that Griffith must meet this heightened burden.

A. Likelihood of Success on the Merits

i. Hybrid-Rights Theory

Griffith argues that, because she alleges both a free exercise claim and a free speech claim, the court must apply a heightened level of scrutiny to the school's policy prohibiting decorations on graduation caps during the graduation ceremony. [Dkt. #20, p. 17]. Griffith's argument has its origins in Employment Div., Ore. Dept. of Human Res. v. Smith, 494 U.S. 872 (1990). Under Smith, when a person's free exercise of religion is impaired by a neutral rule of general applicability issued by a governmental entity, the court examines the rule under the rational-basis review standard. See id. at 878 ("If prohibiting the exercise of religion . . . is not the object of the [rule], but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended."); see also United States v. Hardman, 297 F.3d 1116, 1126 (10th Cir. 2002) ("In effect, Smith creates a 'safe harbor'—if the law is 'a valid and neutral law of general applicability,' then it must simply be rationally related to a legitimate government end."). In declining to apply strict scrutiny to neutral rules of general applicability, the Court distinguished some of its previous free exercise decisions, noting that in those cases, the plaintiff had also asserted other constitutional claims, such as freedom of speech and of the press. Smith, 494 U.S. at 882.

Some courts have interpreted this language in Smith as recognizing a "hybrid-rights" theory, under which courts apply heightened scrutiny in cases where multiple constitutional violations are asserted together. See, e.g., Miller v. Reed, 176 F.3d 1202, 1207-08 (9th Cir. 1999). The Supreme Court has not further articulated a hybrid-rights theory based on Smith, and the significance of the language in Smith is uncertain. See Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67, 88 (Cal. 2004); see also Parker v. Hurley, 514 F.3d 87, 97 (1stCir. 2008) ("[w]hat the Court meant by its discussion of 'hybrid situations' in Smith has led to a great deal of discussion and disagreement."). But "[w]hatever the Smith hybrid-rights theory may ultimately mean . . . it at least requires a colorable showing of infringement of recognized and specific constitutional rights, rather than the mere invocation of a general right. . . ." Swanson v. Guthrie Ind. Sch. Dist. No. I-L, 135 F.3d 694, 700 (10th Cir. 1998).

As discussed below, Griffith has not made a "colorable showing of infringement" of her "recognized and specific constitutional right[]" to free speech under the First Amendment. Id. Thus, the court need not apply heightened scrutiny to the school's policy prohibiting decorations on graduation caps based on a hybrid-rights theory.

ii. Free Exercise of Religion

To survive a constitutional challenge based on an alleged violation of the free exercise clause of the First Amendment, "a law that is both neutral and generally applicable need only be rationally related to a legitimate governmental interest." Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1232 (10th Cir. 2009) (citing Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 649-50 (10th Cir. 2006)).

Here, the school's policy prohibiting all decorations on graduation caps is a neutral policy of general applicability. Furthermore, the school has a legitimate interest in maintaining the formality of the graduation ceremony, and in demonstrating the unity of the graduating class. See Corder, 566 F.3d at 1229 ("A graduation ceremony is an opportunity for the School District to impart lessons on discipline, courtesy, and respect for authority."); Bear v. Fleming, 714 F. Supp. 2d 972, 989 (D.S.D. 2010) ("The school board has a legitimate interest in honoring its graduating seniors and preserving the unity of the class at this most auspicious event.").

Griffith contends that the policy is not rationally related to the school's interest in promoting unity, given that others students would be permitted to wear other regalia (such as stoles from the National Honor Society) and in light of the school's offer to allow her to wear the feather in her hair or on a necklace, or to carry the feather. [Dkt. #20, p. 18]. But these other regalia are permitted to allow recognition of the students' accomplishments in school-sponsored activities. See Bear, 714 F.Supp.2d at 989 ("The school board has a legitimate interest in ensuring that the graduation exercises convey . . . messages that advance the mission and goals of the school."). Furthermore, none of these permitted variances to the graduation regalia are worn on the cap. As the school Superintendent testified at the hearing before the Magistrate Judge, the graduation caps are the most visible...