The opinion of the court was delivered by: Honorable Edward J. Lodge U. S. District Judge
MEMORANDUM, DECISION, AND ORDER
Before the Court in the above entitled matter are the Defendants' motion to dismiss, the Plaintiffs' motion for preliminary injunction, and the Defendants' motion to waive. The motions are fully briefed and ripe for the Court's consideration. Having fully reviewed the record herein, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, the motions shall be decided on the record before this Court without oral argument. Dist. Idaho Loc. Civ. R. 7.1(d)(2)(ii).
The Plaintiffs, Nampa Classical Charter Academy ("NCA"), Isaac Moffett, Maria Kosmann, and M.K. (collectively "the Plaintiffs"),*fn1 initiated this action following the August 14, 2009 special meeting of the Idaho Public Charter School Commission's (the "Commission")*fn2 where the Commission adopted the Attorney General's position that the use of religious documents or texts in public school curriculum would violate Article IX, § 6 of the Idaho Constitution. (Docket No. 1, Ex. 1). This position adopted by the Commission, that NCA calls the "Policy," prompted the Plaintiffs to file the instant complaint alleging violations of the First Amendment, Due Process Clause, Equal Protection Clause, Establishment Clause, and violation of Idaho Code § 33-5209 and § 33-5210. (Docket No. 1).*fn3 The claims allege that the Policy unlawfully prohibits the use of any "religious documents or text in a public school curriculum" or to "use religious text in class or in the classroom." (Docket No. 1, p. 3).
The complaint names several Defendants including: the Commission Chairman, William Goesling; the members of the Commission;*fn4 Tamara L. Baysinger, the Commission's Charter Schools Program Manager; the members of the State Board of Education (the "Board");*fn5 the Superintendent of Public Instruction, Tom Luna; and the Attorney General of the State of Idaho, Lawrence Wasden.*fn6 (Docket No. 21, p. 9).*fn7 The Defendants are each named in both their individual and official capacities. On September 3, 2009, Plaintiffs filed a motion for a temporary restraining order seeking to enjoin the Defendants from "enforcing their Order and Policy prohibiting all religious documents and text from the Academy's curriculum, from issuing and enforcing a Notice of Defect,*fn8 and from revoking Plaintiff Academy's charter." (Docket No. 6). This Court denied the motion for temporary restraining order. (Docket No. 13). On, October 2, 2009, Plaintiffs filed an amended complaint followed by a second amended complaint on December 15, 2009. (Docket Nos. 14, 21). The second amended complaint alleges the following claims for relief:
1. Violation of Procedural Due Process Clause under the Fourteenth Amendment;
2. Violation of the Free Speech Clause of the First Amendment;
3. Violation of the Establishment Clause of the First Amendment;
4. Violation of the Equal Protection Clause of the Fourteenth Amendment;
5. Retaliation for Exercising First Amendment Rights; and
6. Violation of Idaho Code §§ 33-5209 and 33-5210. (Docket No. 21).
The second amended complaint seeks relief in the form of declaratory judgment, injunctive relief, damages against the individual capacity defendants, and costs and attorney fees. (Docket No. 21). On January 8, 2010, the Defendants' filed their answer and motion to dismiss. (Docket Nos. 22, 23). On January 27, 2010, Plaintiffs filed their motion for preliminary injunction. (Docket No. 26). The Court now takes up the pending motions in this case.
NCA is a not-for-profit organization incorporated under the laws of the State of Idaho. Its curriculum is structured in a "classical, liberal arts format, and focuses its study not on textbooks but rather on primary sources as a method of educating its students." (Docket No. 21, p. 5). Teachers at NCA utilize a variety of original/primary source documents for teaching their courses. These primary sources include both secular and religious materials such as the Bible, Koran, the Book of Mormon, the Hadieth, etc. (Docket No. 14, p. 14). By using primary source documents, NCA's staff believes they can better teach students about a wide variety of subjects.
The Board approved NCA's charter petition in September of 2008.*fn9 In July of 2009, however, the question of whether the Bible could be used as part of NCA's curriculum was raised at a Commission meeting. The Commission requested legal opinions on the issue be submitted before the next meeting set for August 14, 2009.
On August 11, 2009, NCA submitted a legal opinion letter to the Commission concluding that denying NCA's "right to use the Bible in its curriculum cannot pass muster under either the Constitution of Idaho or the United States Constitution." (Docket No. 24, Ex. 3). At the August 14, 2009 Commission meeting, Defendant Goesling advised NCA of the legal opinion the Commission had received from Jennifer Swartz, a Deputy in the Attorney General's Office, stating: "the use of religious documents or text in a public school curriculum will be a violation of the Idaho Constitution." (Docket No. 24, Ex. 2). Defendant Goesling then stated on the advice of our counsel, the commission will take the position that the use of religious documents or text in a public school curriculum will be a violation of the Idaho Constitution. Accordingly, the commission wishes to advise the Nampa Classical Academy that if it proceeds to use religious text in class or in the classroom, the commission will be required to issue the school a notice of defect. (Docket No. 24, Ex. 1). This action was initiated on September 1, 2009.
On November 6, 2009, the Commission issued a Notice of Defect to the NCA on the grounds that they had violated the terms of their charter and a provision of law by failing to respond in a timely fashion to two public records requests. (Docket No. 28, Ex. 4). In total, the Commission issued five Notices of Defect to NCA. (Docket No. 35-2, p. 5). Only one Notice of Defect addressed the use of materials that are not allowed under Article IX, § 6. (Docket No. 22, Att. 1). At the February 11, 2010 special meeting, the Commission adopted Guidelines for Applying the Provisions of Idaho Constitution Article IX, § 6 (the "Guidelines"). (Docket Nos. 35-2, 35-3, 35-4). Plaintiffs' claims allege these actions by the Defendants violated their constitutional rights.
The Federal law claims raised in this matter arise under 28 U.S.C. § 2201 and 42 U.S.C. §§ 1983 and 1988. Section 1983 is "'not itself a source of substantive rights,' but merely provides 'a method for vindicating federal rights elsewhere conferred.'" Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)).*fn10 To establish a prima facie case under 42 U.S.C. § 1983, Plaintiffs "must adduce proof of two elements: (1) the action occurred 'under color of law' and (2) the action resulted in a deprivation of a constitutional right or a federal statutory right." Souders v. Lucero, 196 F.3d 1040, 1043 (9th Cir. 1999) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981)). Stated differently, to state a claim under § 1983, a plaintiff must allege four elements: "(1) a violation of rights protected by the Constitution or created by federal statute (2) proximately caused (3) by conduct of a 'person' (4) acting under color of state law." Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). The threshold inquiry for § 1983 action is "whether the plaintiff has been deprived of a right 'secured by the Constitution and laws.'" Baker v. McCollan, 443 U.S. 137, 140 (1979). Plaintiffs Federal law claims allege violations of the First and Fourteenth Amendments. Defendants challenge the legal sufficiency of these claims which the Court takes up as follows.
A. Rule 12(b)(1) Motion to Dismiss - Lack of Subject Matter Jurisdiction
Defendants argue both NCA and Mr. Moffett, in his official capacity, are not persons with rights to raise these claims under the Federal Constitution. They are, Defendants contend, "a State-created unit of government and a State-created office" and, thus, not "persons" entitled to the protections of the Federal ...