UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

MINOR I. DOE, et al.;

Plaintiffs,

v.

SCHOOL BOARD FOR SANTA 

ROSA COUNTY, FLORIDA; et al.;

Defendants.

/

No.: 3:08-cv-361 MCR/CJK

FIRST AMENDED CONSENT DECREE AND ORDER

On August 27, 2008, Plaintiffs MINOR I DOE and MINOR II DOE 

filed a Complaint asserting claims pursuant to 42 U.S.C. §1983 against 

Defendants SCHOOL BOARD FOR SANTA ROSA COUNTY, FLORIDA 

("School Board"), JOHN ROGERS, in his official capacity as 

Superintendent of the School District of Santa Rosa County, Florida (who 

has subsequently been replaced by Tim Wyrosdick) (“Superintendent”), and 

H. . FRANK LAY, in his official capacity as Principal of Pace High School

(who has subsequently been replaced by Bryan Stephen Shell) (collectively 

"Defendants"). The Defendants admitted liability for the claims in the 

Complaint and for the violations of the U.S. Constitution's Establishment 

Clause and the Florida Constitution's No-Aid Provision.

The parties now wish to To avoid further costly and protracted 

disputes and have , the parties agreed voluntarily to the original Consent 

Decree and Order entered on May 6, 2009, and now wish to agree, as 

indicated by the signatures below, to resolve the Plaintiffs' claims by 

entering into this First Amended Consent Decree and Order (hereinafter 

"Order").

The Court has reviewed the claims as to which the Defendants have 

admitted liability and the terms of the Agreementtheir agreement set out in 

this Order, which the parties have together reached. Other than with respect 

tothis Court’s rulings and findings made elsewhere regarding the issue of the 
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Plaintiffs' proceeding anonymously in this action, the Court has not been 

asked to, and therefore original Consent Decree and those specifically made 

here regarding this Order, the Court does not, here decide any new legal or 

factual dispute concerning the matters presented herein. Instead, the Court's 

role in In adopting the parties' Agreement is limited to ensuring the 

Agreementthis Consent Decree, the Court has ensured it comports with the 

U.S. Constitution, which prescribes the floor beneath which protections may 

not fall rather than a ceiling. Concluding that the terms of the parties' 

Agreement are appropriate under the circumstances presented and that the 

entry of this Order comports with federal constitutional law, the Court 

therefore

ORDERS, ADJUDGES, and DECREES as follows:

11. Some of the Defendants' District-wide policies, practices, and 

customs alleged in the Complaint violate the Establishment Clause of the 

First Amendment to the U.S. Constitution and the "No Aid" provision of the 

Florida Constitution. Some of the Defendants' policies, practices, and 

customs (1a) endorse and promote religion and (2b) have the purpose or 

effect of advancing religion.

22. The Clerk shall enter Judgment in favor of the Plaintiffs, Minor 

I Doe Consent Decree and Minor II Doe,Order entered on May 6, 2009, is 

hereby amended. This Order replaces that original Consent Decree and 

against the Defendants. Defendants shall pay Minor' Doe damages in the

amount of $1.00. Defendants shall pay Minor II Doe damages in the amount 

of $1.00Order. The Court finds that, as it previously held with respect to 

original Consent Decree and Order, this Order is “plainly legitimate because 

it expressly applies to official capacity conduct and remedies admitted 

Establishment Clause” violations. Doe v. School Board for Santa Rosa 

County, 264 F.R.D. 670, 687 n. 31 (N.D. Fla. 2010).

Definitions

33. The following definitions shall apply to this Order. In 

construing these definitions the singular shall include the plural and the 

plural shall include the singular:
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(a) "Club" means a noncurricular student group recognized by the 

School District and that qualifies through the five, safe-haven provisions (20 

U.S.C. §4071 (c)) for protection under the Equal Access Act.

(b) "Prayer" means a communication (written or audible) with a 

deity, including, but not limited to, a devotional, benediction, an invocation, 

the Lord's Prayer, blessing, reading from a sacred text (unless done as part of 

an authorized curriculum), sermon, or otherwise calling upon a deity to offer 

guidance, assistance, or a blessing. Accordingly, “Prayer” does not include 

customary, polite expressions and greetings, including “God Bless You” or 

“Thank Heavens,” or a student’s religious expression responsive to a 

legitimate academic class assignment.

(c) "Religious Service" means a convocation for a religious reason 

of any kind, in whole or in part, or religious worshippurpose, including, but 

not limited to, baccalaureate, and includes all aspects of religious 

observanceyouth group meeting or event, church service, and practice, as 

well as beliefBible study.

(d) "Religious Title" means Benediction, Invocation, Prayer, 

Blessing, Inspirational Message, Sermon, Devotional Pledge, Bible Reading, 

Devotion or any other title that in any way relates to Prayer or a deity.

(e) "Religious Venue" means a property, facility, building, or place 

that is maintained and controlled by or for a religious body that is organized, 

in whole or in part, to sustain public worship.

(f) "School District" means the Santa Rosa County School District.

(g) "School Event" means any activity or happening (i) at a School 

Board facility or (ii) sponsored, approvedconducted, or supervised by a 

School Official acting in his or her official capacityOfficial Capacity. It 

includes, but is not limited to, a graduation, grade-promotion ceremony, 

award program, induction ceremony, pep rally, competition, practice, 

performance, class instructional time, and a club meeting or event. 

However, a Club meeting or eventeach of the following activities is not a 

School Event:
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(1) A student religious Club meeting or event, if all School 

OfficialsBoard employees and agents are only present at its meetings and 

eventsthe meeting or event in a "nonparticipatory capacity," as used in the 

Equal Access Act. Furthermore, when School District facilities are rented to 

a person or entity that is not a School Official, the event or happening during 

the rental period and at the rented location shall not be a School Event if all 

of the following are true: (1) the rent collected is consistent with the rental 

rate indiscriminately charged to all rental applicants, ;

(2) the rental time period is not during school hours, and (3) the 

principal attendees are not An activity at a School Board facility, if (i) 

it is outside the presence of School District students and (ii) no School 

Official acts in his or her Official Capacity; and

(3) An activity at a School Board facility that is used by a thirdparty (i) pursuant to a standard facility use agreement or (ii) the principal’s 

advance written permission in accordance with School Board policy and that 

permission indicates the name of the responsible third-party user, the use 

period, facility to be used, purpose of use, and conditions of use. The 

foregoing third-party uses must (I) occur during the agreed use period, 

(II) be on terms of usage (including rent) that are consistent with the terms

applicable to other third-party users, (III) not involve any School Official 

acting in his or her Official Capacity, and (IV) not take place during school 

hours. Until May 6, 2014, School Officials shall not permit third parties to 

use a school facility pursuant to a standard facility use agreement or 

principal’s permission (A) during instructional time, (B) when the majority 

of school employees assigned to the subject school facility are contractually 

obligated to be present, or (C) during the transitional period before or after 

school when students are embarking or disembarking from school buses or 

private transportation. School Officials may supervise students between 

instructional time and the third-party use period if the supervision is neutral 

with respect to religion.

(h) "School Official" means the Defendants and their officers, 

agents, affiliates, subsidiaries, servants, employees, successors, and all other 

persons or entities in active concert or privity or participation with them in 

his or her official capacity. If these persons are present at a School Event, 

then they are present in their official capacity. However, outside , but only to 
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the extent such a person acts in his or her Official Capacity or is in active 

concert or privity or participation with the Defendants. Outside 

organizations that receive no support from the Defendants, do not receive 

remuneration of any kind from the Defendants, are not controlled by the 

Defendants, and are not given preferential treatment or access (e.g., to sell 

wares) by the Defendants are not School Officials, for example booster clubs 

when they satisfy these requirements.

(i) “Official Capacity”: As the Court has previously made clear, 

“the plain language of the consent decree simply does not address the 

conduct of school employees in any context other than in their official 

capacity.” Doe v. School Board for Santa Rosa County, 264 F.R.D. 670, 

683 (N.D. Fla. 2010). A person acts in his or her “Official Capacity” when 

(1) performing official duties or furthering the work of the School Board or 

(2) acting under or with a power or authority granted by virtue of 

employment by or association with the School Board. However, where the 

only power or authority the School Official exercises is the authority to be

present at a School Board facility and the School Official is not interacting 

with or in the presence of a student, then the School Official is not in his or 

her Official Capacity by virtue of subsection (i)(2).

Equal Access Act

4. 4. No provision in this Order is intended to supplant or alter the 

rights afforded student clubs by the Equal Access Act. School Officials 

shall comply with the Equal Access Act. 20 U.S.C. §4071 et seq.

Permanent Injunction

55. Prayer at School Events: School Officials are permanently 

enjoined from promoting, advancing, endorsing, participating in, or causing 

Prayers during or in conjunction with School Events for any school within 

the School District:

(a) School Officials shall neither offer nor participate in a Prayer 

during or in conjunction with a School Event.

(b) School Officials shall prohibit non-student third-parties 

(including clergy or other religious leaders) from offering a Prayer, 
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invocation, benediction, or other religious remarks during or in conjunction 

with a School Event from offering a Prayer addressed to an audience as part 

of the event or program, soliciting a Prayer from anyone as part of the event 

or program, or promoting a religious belief to anyone as part of the event or 

program.

(c) School Officials shall not include Prayer, whether or not it is 

noted in a printed program, during or in conjunction with a School Event. 

School Officials shall not authorizegive authorization to a group of students, 

student groups, a student body (e.g., through an election), or third parties to 

include Prayer, whether or not it is noted in a printed program, during or in 

conjunction with a School Event.

(d) School Officials shall not encourage, solicit, or invite any 

person, either implicitly or explicitly, to deliver or offer a Prayer during or in 

conjunction with a School Event. School Officials shall not set aside a time 

for Prayer during or in conjunction with a School Event.

(e) If a School Official elects to review or may by policy review 

the content of a student's or any other person's planned address during or in 

conjunction with a School Event, then School Officials shall prohibit the 

person making the address from offering a Prayer.

(f) School Officials shall prohibit any segment of a School Event 

from having a Religious Title. School Officials shall not give any segment of 

a School Event a Religious Title. School Officials shall not permit students, 

student groups, or third parties to give a segment of a School Event a 

Religious Title.

(g) If School Officials select persons to make an address during or 

in conjunction with School Event, they shall do so by a selection process 

that is neutral to religion and in compliance with a written policy.

(h) To the extent that School Officials permit a person during or in 

conjunction with School Events to give an address that a School Official can 

or does shape, review, or edit for content, substance, message, style, or 

theme, then School Officials shall instruct the person that ensure the person's 

address must excludeexcludes Prayer.
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66. Religious Services (Baccalaureate): School Officials are 

permanently enjoined from planning, organizing, financing, promoting, or 

otherwise sponsoring in whole or in part a Religious Service, including 

baccalaureate, for any school within the School District: 

(a) School funds shall not be used to plan, organize, finance, 

promote or otherwise sponsor a Religious Service, including, but not limited 

to (1) printing programs for a Religious Service, (2) compensating or 

reimbursing expenses for a speaker at a Religious Service, or (3) paying for 

overhead costs (lighting, heating, cooling, janitorial, etc.) for a Religious 

Service. This subsectionSubsection (a)(3) shall not apply when the School 

Board rents School District facilities are used for a Religious Service by a 

third-party pursuant to a standard facility use agreement, on terms and 

schedules (including rental rates) that are equally chargedapplicable to all 

rental applicants.

(b) School Officials shall not require School Officials to attend any 

Religious Service, including baccalaureate. School Officials shall not be 

tasked with official responsibilities at any Religious Service, except serving 

as the faculty advisor to supervise a Club meeting or event. School Officials 

shall not monitor behavior of students or require them to conform to any 

standards at any Religious Service, including delineating proper dress at 

baccalaureate, except to supervise a Club meeting or event. School Officials 

shall not plan or organize any Religious Service on school time or do so by 

using School District equipment or supplies.

(c) School Officials during or in conjunction with a School Event 

shall not require or encourage students to attend any Religious Service, 

including baccalaureate. School Officials shall prohibit a school band or 

choir from performing at a Religious Service, including baccalaureate. 

Provided however, that individual students, in their personal 

capacitycapacities, may not be prohibited from such performance.

(d) While School Officials in their personal capacity may 

participate in a Religious Service, their role and participation shall not be in 

their official capacity. No Religious Service commemorating the graduation 

or grade-promotion of a class of students shall be comprised, led, or directed 

principally by School Officials. School Officials collectively shall not 

conform their seatingby School Officials in their Official Capacity. Nothing 
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herein restricts a School Board employee or dress so as to designate their 

participationagent’s non-Official Capacity participation in, or attendance at a 

Religious Service is by virtue of their official positionsspeech or conduct 

during, a private religious service, including baccalaureate.

77. School Events at Religious Venues: School Officials are 

permanently enjoined from holding School Events for any school within the 

School District at a Religious Venue when an alternative venue is reasonably 

suitable that is not a Religious Venue; When it s reasonably necessary for a 

School Event to be held at a Religious Venue, the secular justification for 

the use of the Religious. Venue shall be documented pursuant to 

subparagraph 7(a).

(a) If a School Event is held at a Religious Venue, School Officials 

shall document in writing before the event takes place the following: (1 )the 

Religious Venue's physical address, (2) the Religious Venue's owner and 

contact information, (3) the owner's affiliation with a house of worship or 

congregation, if any, (4) the nature of the School Event, the expected 

number and category (students, School Officials, and others) of attendees, 

and the available parking, (5) the venue for the last three years for past 

school events of this nature for this school, (6) the compensation that will be 

paid to use this Religious Venue, (7) the compensation typically paid to use 

this Religious Venue, if known, (8) the distance from the applicable school, 

whose event this is, and the Religious Venue, (9) the identity of the School 

Officials involved in selecting the Religious Venue, and (10) a certification 

that no other venue that is not a Religious Venue would be reasonably

suitable for this School Event. The written documentation shall be verified 

by the signature of at least one School Official. School Officials shall 

transmit a copy of this written documentation to the superintendent's office 

or his or her delegatee for maintenance and review by the public. The use of 

a Religious Venue for a School Event may only be done with the approval of 

the Superintendent or his or her delegatee.

(b) Notwithstanding the foregoing and without complying with this 

procedure, School Officials may hold School Events at a venue, facility, or 

property owned or maintained by (1) another School Board (e.g., a opposing 

team in a football game); (2) a state or any political subdivision or agency 

thereof; or (3) any Non-Religious Venue.
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88. Promotion of Personal Religious Beliefs: School Officials are 

permanently enjoined from permitting School Officials at any school within 

the School District to promote their personal religious beliefs to students in 

class or during or in conjunction with a School Event.

(a) School Officials shall not participate in any way in a Prayer 

with students during or in conjunction with instructional periods or a School 

Event. During or in conjunction with a School Event, School Officials shall 

not offer a Prayer, recite a Prayer alongside or with students, bow their heads 

or otherwise posture in a manner that is likely to be perceived as an 

endorsement of the Prayer, e.g. bowing their heads, kneeling, or folding 

theirkneel or join hands with students. A School Official’s remaining still 

and silent with hands folded, as a sign of respect, during a Prayer shall not 

alone constitute an endorsement.

(b) School Officials shall be present at student-, religious-club 

meetings or events only in a nonparticipatory capacity. School Officials shall 

not lecture, proselytize, pray, or preach at student-, religious-c1ub meetings 

or events.

(c) School Officials shall not read or assign readings from a sacred 

text or a sermon absent a legitimate non-religious educational objective. 

School Officials shall not cite to the Bible or any sacred text as authority for

historical or scientific fact to students during or in conjunction with a School 

Event, which is consistent with current State curriculum.

(d) School Officials during or in conjunction with a School Event 

shall not solicit, discourage, or encourage students to engage in religious 

activity or attend a Religious Service.

(e) School Officials shall not orally express personal religious 

beliefs to students during or in conjunction with instructional time or a 

School Event. A School OfficialOfficials shall not express personal religious 

beliefs to students through written or symbolic means, except as (whether 

placed on a classroom wall, erected on a classroom floor, or attached or 

placed on the District’s tangible property). However, jewelry on the School 

Official's person or clothing or religious articles compelled to be worn by the 

School Official's sincerely held religious beliefs Official (e.g. a yarmulke. 

Absent an articulated nonreligious pedagogical reason, School Officials shall 
Page 10 of 16

not display and a cross necklace) are permissible. Nothing herein shall 

prohibit a teacher from using religious symbols or quotations from sacred , 

articles, or books on the classroom walls, erect them on the classroom floor, 

or attach or place them on the District's tangible propertyfor a non-religious 

educational reason.

(f) School Officials shall not include any religious beliefs or 

references to a deity or religious leader or prophet or their affiliation with a 

religious congregation,information that is not directly related to their official 

duties on their Teacher Pages or similar teacher-specific pages posted on or 

directly navigable from a District school's webpage.

(g) For each school club or organization of students that is not a 

Club Except for educational background, School Officials shall prohibit the 

club or organizationexclude on such pages biographical information, e.g. 

personal interests, memberships, and activities.

(g) School Officials shall prohibit nonreligious Clubs and

organizations from having a an official position in the organization of 

"chaplain" or one whose responsibilities are to serve as a religious leader, 

counselor, or guide. Nor shall School Officials recognize such a position.

99. School Officials are permanently enjoined from taking 

retaliatory action against Plaintiffs for bringing this lawsuit. 

Other Orders

1010. The Defendants shall provide a copy of this Order to all current 

School Officials throughout the School District. The Defendants shall 

provide a copy of this Order to all persons who later become School 

Officials, for the period from the present to January 1, 2015. This Order 

shall be disseminated in the same manner as School Board Policies and 

Procedures and shall be maintained in any electronic or paper policy manual. 

This Order shall be included in the District's "Code of Student Conduct" or 

substantially equivalent publication.

1111. The Defendants shall continue to maintain a process for the 

investigation of student initiated complaints.
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1212. This Court retains jurisdiction of this case to enforce the terms 

of this Order.

1313. Attorneys' Fees, Costs, and Litigation Expenses: Pursuant to 

(a) ) 42 U.S.C. §1988, (b) ) Rule 54, Federal Rules of Civil Procedure, and 

(c) ) Rule 54.1. Local Rules of the Northern District of Florida, this Court

concluded that the Plaintiffs are the prevailing parties on all claims. filed in 

this matter. The Court concluded that the Defendants are liable (as the term 

is used in N.D. Fla. Loc. R. 54.1 (C)) for the Plaintiffs' reasonable attorneys' 

fees, costs, and litigation expenses in accordance with applicable law. The 

parties shall follow the Local Rules for the Northern District of Florida in 

determiningreached an agreement on the amount of taxedattorneys’ fees,

costs, and the amount of the award of attorneys' fees and litigation expenses. 

, including those for any monitoring, through June 30, 2011, which the 

Defendants paid.

14. The reasonableness of the amounts of fees, costsClerk entered

Judgment in favor of the Plaintiffs, Minor I Doe and Minor II Doe, and 

litigation expenses shall be determined following the entry of final 

judgment. Nothing herein eliminates or reduces Plaintiffs' burden to 

establish the reasonableness of against the Defendants. Judgment (DE 96). 

Defendants paid Minor' Doe damages in the amount of $1.00. Defendants 

paid Minor II Doe damages in the amount of their fees, costs, and litigation 

expenses, or restricts Defendants' ability to challenge them$1.00.

1415. Nothing in this Order will be construed to limit any party's right 

to enforce this Order (or any other documentation delivered pursuant to or in 

connection with it) according to its terms. If any court of competent 

jurisdiction determines that any provision contained in this Order, or any 

part thereof, cannot be enforced, the parties agree that such determination 

shall not affect or invalidate the remainder of the Order.

1516. This Order shall inure to the benefit of and be binding upon the 

parties hereto and their respective heirs, successors, and assigns.

1617. This Order is designed to ensure that the School District's 

practices and policies do not violate, either currently or in the future, the 

First Amendment rights of students in the School District. The parties to this 

Order shall endeavor in good faith to resolve informally any differences 
Page 12 of 16

regarding interpretation of and compliance with this Order before bringing 

such matters to the Court for resolution. On the Plaintiffs' counsel's request, 

the Superintendent shall provide information reasonably available to him so 

that the Plaintiffs' counsel may ensure the School Officials' compliance with 

this Order and evaluate in context the Defendants' guidance and 

interpretation of this Order and their enforcement efforts with respect to this 

Order. However, in the event that the Defendants either fail to perform in a 

timely manner any act required by this Order or act in violation of any 

provision of this Order, each Plaintiff or any affected student-present or 

future-who alleges a violation may contact the Plaintiffs' counsel. As may be 

appropriate, counsel may then move the Court to impose any remedy 

authorized by law or equity, including, but not limited to, an order requiring 

performance or non-performance of certain acts.

1718. The Defendants, their agents, representatives, successors, and 

assigns shall take no action that would disclose the identities of the 

Plaintiffs, including the release of filed or unfiled court documents, or 

otherwise compromise the Plaintiffs' anonymity, for a period of five (5) 

years from the date of this Order until May 6, 2014.

18. Five (5) years from the date of this Order19. On or about May 

6, 2014, the parties shall contact the Court to discuss the need for further 

continuation of the Order.

19. 20. If this Order does not expressly prohibit conduct, then it 

is permitted as authorized bylaw.
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SO ORDERED, this ___ day of ________, 

20092011

_______________________________________

HON. M. CASEY RODGERS, U.S. District Judge

By their signatures on this and the following pages, the undersigned 

parties agree to, and request the entry of, this Order:

PLAINTIFF MINOR I. DOE

______________________________

by and for [to be filled in later]

PLAINTIFF MINOR II. DOE

______________________________

by and for [to be filled in later]

DEFENDANT SCHOOL BOARD 

FOR SANTA ROSA COUNTY, 

FLORIDA

______________________________

by Ed Gray III

by Diane Scott

School Board Chairperson

DEFENDANT TIM 

WYROSDICK, in his official 

capacity as Superintendent of the 

School District of Santa Rosa 

County, Florida

______________________________

by Tim Wyrosdick

DEFENDANT H. FRANK 

LAYBRYAN STEPHEN SHELL, 

in his official capacity as Principal 
Page 14 of 16

of Pace High School

______________________________

by H. Frank Lay

Bryan Stephen Shell
Page 15 of 16

Approved as to Form:

Plaintiffs’ Counsel

 

Benjamin James Stevenson (Fla. Bar. No. 

598909)

American Civil Liberties Union Found. of Fla.

Post Office Box 12723

Pensacola, FL 32591-2723

bstevenson@aclufl.org

Tel: 850.429.9128

Fax: 786.363.1985

Glenn M. Katon (Fla. Bar. No. 636894)

American Civil Liberties Union Found. of Fla.

Post Office Box 18245

Tampa, FL 33679

gkaton@aclufl.org

Tel: 813.254.0925

Fax: 813.254.0926

Randall C. Marshall (Fla. Bar No.: 181765)

RMarshall@aclufl.org

Maria Kayanan (Fla. Bar No.: 305601)

MKayanan@aclufl.org

American Civil Liberties Union Found. of Fla.

4500 Biscayne Blvd., Suite 340

Miami, FloridaFL 33137

Tel: 786.363.2700

Fax: 786.363.1108

Daniel Mach (D.C. Bar No.: 461652)

dmach@aclu.org

Heather L. Weaver (D.C. Bar No.: 495582)

hweaver@aclu.org

ACLU Prog. on Freedom of Religion & Belief

915 15th Street, NW

Washington, DC 20005

Defendants’ Counsel

Counsel for School Board

 

Robert J. Sniffen

Florida Bar Number: 0000795

J. David Marsey

Florida Bar Number: 0010212

rsniffen@sniffenlaw.com

Lindsey Dunn

ldunn@sniffenlaw.com

Sniffen Law Firm& Spellman, 

P.A.

211 East Call Street

Tallahassee, FL 32301

rsniffen@sniffenlaw.com

Telephone: (850) 205-1996

Facsimile: (850) 205-3004

Paul R. Green

Florida Bar No.: 127448

Johnson,Paul R. Green, and 

Miller, P.A.

6850 Caroline Street

PO Box 605

Milton, FL 32570

paulg1229@bellsouth.net

Telephone: (850) 623-3841

Facsimile: (850) 623-3555

Counsel for Principal Lay

 
Page 16 of 16

Tel: 202.675.2330

Fax: 202.546.0738

Christopher Barkas

Florida Bar Number: 449202

Matthew Liebenhaut

Florida Bar Number: 47078

Carr Allison

305 South Gadsden Street

Tallahassee, Florida 32301

Facsimile: (850) 222-8475

cbarkas@carrallison.com

Telephone: (850) 222-2107

Facsimile: (850) 222-8475