Anatomy of a Shakedown

Posted on October 26, 2005

As the post title suggests, I intend to walk you through the process by which activist groups who are hostile to religion change the behavior of communities to conform to their worldview one city at a time, and make money doing it. On Tuesday, October 25th, the Brevard County (Florida) School Board issued a press release stating that it would no longer allow graduation ceremonies to take place in venues where a cross is visible. The vote of the school board was unanimous.
How did this happen? Why did Brevard County decide to stop using low-cost, spacious, air-conditioned and indoor venues that happen to be in churches, as they had in the past? It was a lawsuit, naturally. This time it was not the ACLU, but rather People United for the Separation of Church and State who brought the lawsuit. To explain to you how easy it was for that activist organization to get crosses (in their words “iconography”) outlawed at graduation ceremonies in that county, and make money doing it, let me give you some background and walk you through the process.

It could be that the plaintiffs found the activist group, or it might be the other way around. Either way, the first thing is to identify any individual person who may be invited to attend an event at which a cross (iconography) is present, and who does not like the presence of the cross. It does not matter that a student graduating from high school is not forced to attend and is merely invited; the point is that no one should have to face having to decide between attending a voluntary event and seeing a cross, or staying away. I suggest that is an extraordinarily low threshold to find that such a situation constitutes a governmental establishment of religion, but I digress.

Once the disgruntled student/and/or/parent is identified, file a lawsuit. Don’t worry about whether or not your plaintiffs would actually suffer harm, because it doesn’t matter. No one will ever even ask you to present your evidence.

Next, (if you are the activist group) show up at an emergency hearing and ask a federal judge to stop the graduation ceremonies and declare them unconstitutional. Don’t bring any witnesses or exhibits or evidence with you to the hearing. You won’t need them.

After the friendly judge admonishes the school board’s lawyers for “engaging in conduct that is questionable at best”, enter the next phase of litigation and inform the county about your attorneys’ fees. Since the school board, no doubt, is aware of 42 USC section 1988 of the federal code, they will unanimously vote to ban future graduation ceremonies in venues where crosses (iconography) are present, and also vote to pay you a bunch of money for having sued them.

That’s how it works. You never hear of a Christian family suing their county because a cross is not present at a school event, but town-by-town and county-by-county, activist groups are getting judges to change plans, traditions, and behaviors so that others can dictate what can and cannot be visible at school events. And then they get paid for doing it.

Having outlined the process, let me give you a bit more background in this particular case. When the issue first came before a federal judge in May of 2005, I was interested, both because of the petition I’d written to take away the built-in incentive to file such lawsuits, and also because I myself (a long time ago) had graduated from a Brevard County school. My commencement ceremony took place in a Jai-Alai arena. That is, it took place in a gambling venue. The betting windows were visible and everything. No one sued.

Since I was interested, I attended the hearing in the gallery of the federal courthouse. Even though I am an attorney, it was an education in the astonishing ease at which the activist groups get favorable rulings in Establishment Clause cases. I wrote about it at the time as legal correspondent for Free Market News in an article called “Of Crosses and Air Conditioning”, but unfortunately the archived link is no longer available. My initial reporting is available, however at the CourtZero message board. Here are some excerpts:

The primary attorney for the plaintiffs, working for Americans United for Separation of Church and State, appeared by telephone. Neither of the named plaintiffs were present, nor were the parents of the plaintiffs. No testimony was taken by the Court, and no items were entered into evidence. The entire hearing consisted of argument of lawyers and comments by the Judge.

What is interesting about watching the proceedings today firsthand is that the burden was immediately placed upon the defendant school board, once it was established that a building contained a cross. The judge essentially stated that it was the defendant, and not the plaintiffs (who appeared with no witnesses or evidence), who had the burden of proof, specifically saying that the school board had to “justify itself” for having scheduled an event in a building that had a cross in it…Judge Presnell said that “When you hold a school exercise in a church it is almost self-evident that you are violating the Establishment Clause, and are expressing a preference for a particular religion.”

That was pretty much the way it went. The People United attorney, over speaker phone, pointed out that there would be a cross at the place where the graduation ceremonies were to be held, and that was the end of the story. Except for this, after this week’s vote of the school board:

Hope for good weather if you’re graduating from a public high school in south Brevard County next spring.

Now that’s funny. I wonder if the reporter didn’t consider the irony of instead writing “Pray for good weather…” But here is the true heart of the matter:
According to the agreement, Narciso and David Musgrove, who respectively are current and former parents at Palm Bay High, agreed not to seek monetary damages.

In return [for dismissal of the case], the school board agreed to:
1. Not hold graduation ceremonies in churches or other institutions where religious iconography is visible inside or outside the building.
2. Pay $26,500 in attorney fees to Americans United for the Separation of Church and State, which represented the Palm Bay families.

It’s that easy. Do you need a quick $26,500? Sue your town. You won’t need evidence or testimony, just a desire to change the behavior of thousands of people and a predisposition to being offended by “iconography”.

» Filed Under 1st Amendment, ACLU, Activist Judges, Church And State

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Comments

2 Responses to “Anatomy of a Shakedown”

Jay on October 26th, 2005 7:44 pm

ACLU, Americans United…whats the difference? Awesome analysis. Always cool to hear the perspective of an attorney that was actually there. Great job!
bRight &#38; Early on October 26th, 2005 8:14 pm

Another Florida school board (Hillsborough Co.), most likely afraid of such a suit, has announced that they will no longer recognize any religious holidays. This was in response to a Muslim request to recognize theirs. I posted about this when they were considering it here. AJ Strata posted on the results here.