United States District Court,
N.D. Oklahoma.
Hayden GRIFFITH, Plaintiff,
v.
CANEY VALLEY PUBLIC SCHOOLS, Rick Peters, Clint Sumner, Joe Lewis, Jeanie Huffaker, Ron Pruitt, and Sue P. Woods, Defendants.
No. 15–CV–273–GKF–FHM. | Signed May 21, 2015.
Attorneys and Law Firms
Brady Ross Henderson, ACLU of Oklahoma Foundation, Oklahoma City, OK, Daniel Eduardo Gomez, Robert Daniel Carter, Conner & Winters, LLP, Tulsa, OK, Joel West Williams, Native American Rights Fund, Washington, DC, Matthew Campbell, Native American Rights Fund, Boulder, CO, for Plaintiff.
Anthony Thomas Childers, Wiggins Sewell & Ogletree, Fred Andrew Fugitt, Oklahoma City, OK, for Defendants.
AMENDED OPINION AND ORDER
GREGORY K. FRIZZELL, Chief Judge.
*1 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 feather to 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 the record 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
*2 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, 110 S.Ct. 1595, 108 L.Ed.2d 876 (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.
*3 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, 32 Cal.4th 527, 10 Cal.Rptr.3d 283, 85 P.3d 67, 88 (Cal.2004); see also Parker v. Hurley, 514 F.3d 87, 97 (1st Cir.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 aspect of the graduation regalia to members of the audience, who are seated above and behind the graduating class in the stands of the school's football stadium. The school's policy prohibiting individual decorations of the graduation cap is thus a rational means of displaying the unity of the graduating class. As such, Griffith has not shown that the school's policy is not rationally related to its legitimate interest in maintaining a solemn and dignified atmosphere at its graduation ceremony, and conveying a message of unity and discipline to its graduating class.
*4 Griffith therefore fails to carry her burden of showing that she is likely to prevail on the merits of her free exercise claim.
iii. Free Speech Claim
Students in public schools do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988) (quoting Tinker v. Des Moines Independent School Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969)). However, the First Amendment rights of students in the public schools "are not automatically coextensive with the rights of adults in other settings," id. (quoting Bethel School District No. 403 v. Fraser, 478 U.S. 675, 682, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986)), and must be "applied in light of the special characteristics of the school environment." Id. (quoting Tinker, 393 U.S. at 506). In particular, educators do not offend the First Amendment by exercising control over "the style and content of student speech in school-sponsored expressive activities" that observers "might reasonably perceive to bear the imprimatur of the school" "so long as their actions are reasonably related to legitimate pedagogical concerns." Corder, 566 F.3d at 1227, 1229 (quoting Hazlewood, 484 U.S. at 271, 273).
Griffith contends that because the school permits certain forms of academic recognition—such as National Honor Society stoles—during the graduation ceremony, the ceremony is a limited public forum or a designated public forum, in which viewpoint discrimination is not permitted. [Dkt. # 20, p. 12]. But the ceremony may be deemed a public forum only if school authorities have opened it "for indiscriminate use by the general public ... or by some segment of the public, such as student organizations." Hazlewood, 484 U.S. at 267 (internal citations and quotation marks omitted). Here, the school does not "relinquish ultimate control over the content and orderly progression of the proceedings" (Bear, 714 F.Supp.2d at 988) by giving limited recognition of individual academic achievement in school-sponsored activities. In particular, the school does not relinquish control over the graduation caps, which bear no individual decoration of any kind—including recognition of academic achievement. Furthermore, given the degree of control the school exercises over the proceedings, observers would reasonably perceive the expressions made through the students' graduation regalia as bearing the imprimatur of the school. As such, a graduation ceremony "is a school-sponsored event, and, thus, the students' speech ... is school-sponsored speech" subject to restrictions that are reasonably related to legitimate pedagogical concerns. Id. (finding that a school's requirement that a student wear a cap and gown over traditional tribal clothing at a graduation ceremony did not violate his First Amendment rights); see also Corder, 566 F.3d at 1229 ("[T]he graduation ceremony was supervised by the school's faculty and was clearly a school-sponsored event.").
*5 For the reasons discussed above, Griffith has not shown that the school's policy is not rationally related to a legitimate pedagogical interest in maintaining the formality of the graduation ceremony and in demonstrating the unity of the graduating class. She therefore fails to carry her burden of showing she is likely to prevail on her free speech claim.
iv. Oklahoma Religious Freedom Act Claim
The ORFA provides that "[n]o governmental entity shall substantially burden a person's free exercise of religion unless it demonstrates that application of the burden to the person is: 1. Essential to further a compelling governmental interest; and 2. The least restrictive means of furthering that compelling governmental interest." Okla. Stat. tit. 51, § 253(B). "Substantially burden," as the term is used in the ORFA, means "to inhibit or curtail religiously motivated practice." Okla. Stat. tit. 51, § 252(7).2
In Steele v. Guilfoyle, 76 P.3d 99 (Okla.Civ.App.2003),3 the Oklahoma Court of Civil Appeals stated that a governmental entity substantially burdens a plaintiff's free exercise of religion under any of three circumstances:
1. where it "[s]ignificantly inhibit[s] or constrain[s] conduct or expression that manifests some central tenet of a [person's] individual beliefs";
2. where it "meaningfully curtail[s] a [person's] ability to express adherence to his or her faith;" or
3. where it denies "reasonable opportunities to engage in those activities that are fundamental to a [person's] religion."
Id. at 102 (quoting Werner v. McCotter, 49 F.3d 1476, 1480 (10th Cir.1995), cert denied 515 U.S. 1166, 115 S.Ct. 2625, 132 L.Ed.2d 866 (1995)). A governmental entity's action "does not substantially burden religious activity when it merely has an incidental effect that makes it more difficult to practice the religion." Id. (citing Lyng v. Northwestern Indian Cemetery Protective Ass'n, 485 U.S. 439, 450–51, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988)).4
Here, Griffith testified that her religion does not require her to attach the eagle feather to her cap at the graduation ceremony. She also testified that wearing the feather shows her respect for God and for the tribal elder who gave the feather to her, but that failing to attach the feather to her cap would not result in any religious detriment to her. Thus, attaching the feather to her graduation cap would be a personal expression of religious significance to Griffith, but it is not a religiously motivated "practice" (Okla.Stat.tit.51, § 252(7)), or an activity that is "fundamental" to her religion (Steele, 76 P.3d at 102). Nor does the policy prohibiting decorations on graduation caps during the ceremony "meaningfully curtail" her ability to express adherence to her faith. Steele, 76 P.3d at 102. The policy does not prevent Griffith from attaching the feather to her cap at any time other than the graduation ceremony. She may attach it to her cap up until she enters the graduation ceremony, and she may affix the feather to her cap immediately after the ceremony. The school superintendent also offered to re-pose for the professional photographer with Griffith wearing her feather on her cap after the ceremony. In sum, Griffith may display the feather as she wishes throughout her celebration of her graduation, other than during the graduation ceremony with her fellow classmates.
*6 Griffith has not shown that the school's policy substantially burdens her free exercise of religion. Thus, Griffith does not meet her burden of showing a substantial likelihood of prevailing on the merits on her ORFA claim.
B. Irreparable Harm, Balancing of the Harms, and Public Interest
Having failed to demonstrate a violation of the ORFA or of her rights to free speech or the free exercise of religion, Griffith fails to carry her burden of showing she will suffer irreparable harm if an injunction is not issued, or that the threatened injury would outweigh the harm an injunction may cause. Fed. Lands Legal Consortium, 195 F.3d at 1194. Furthermore, the public interest weighs heavily in favor of the school's stated interest in maintaining the uniformity and formality of the graduation ceremony for all students. Id. Thus, Griffith does not meet her "heightened burden of showing that the traditional four factors weigh heavily and compellingly in [her] favor." Fundamentalist Church of Jesus Christ of Latter–Day Saints, 698 F.3d at 1301.
IV. Conclusion
For the foregoing reasons, Griffith's objections [Dkt. # 20] to the Report and Recommendation are overruled, and the court accepts the Magistrate Judge's recommended disposition. Griffith's Motion for Preliminary Injunction [Dkt. # 3] is denied.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION
FRANK H. McCARTHY, United States Magistrate Judge.
Plaintiff's Motion for Preliminary Injunction or Permanent Injunction, [Dkt. 3], is before the undersigned United States Magistrate Judge for Report and Recommendation. The matter was heard on an expedited basis on May 19, 2015. The undersigned RECOMMENDS that Plaintiff's motion be denied.
Background
Plaintiff is a high school student at Caney Valley High School. She is scheduled to participate in a graduation ceremony on Thursday, May 21, 2015. Plaintiff is a member of the Delaware Tribe and the Cherokee Nation. She seeks to affix an eagle feather, which she holds sacred and representative of her religious beliefs, to her graduation cap during her participation in the graduation ceremony. Caney Valley Public Schools (School) prohibit all students from decorating their graduation caps.
Plaintiff states that the eagle feather was ceremonially gifted to her for the specific occasion of her graduation ceremony in recognition of the great honor of graduating from high school. Plaintiff seeks a preliminary injunction prohibiting Caney Valley Public Schools from enforcing the no cap decoration policy with respect to her request to affix an eagle feather to her cap. Plaintiff argues that the policy as applied to the eagle feather violates her right to free exercise of religion and expression under the First and Fourteenth Amendments to the United States Constitution and further violates the Oklahoma Religious Freedom Act.
Discussion
Injunction Requirements
The right to a preliminary injunction must be clear and unequivocal. Dominion Video Satellite, Inc., v. Echostar Satellite Corp., 269 F.3d 1149, 1155 (10th Cir.2001). To obtain an extraordinary equitable remedy, such as a preliminary injunction, the party requesting the extraordinary remedy 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).
*7 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, 269 F.3d at 1154–55). Granting Plaintiff's request for a preliminary injunction would involve each of these categories, therefore the heightened burden applies.
Likelihood of Success on the Merits
The Supreme Court has recognized that judicial interference in the operation of public schools requires "care and restraint." Epperson v. State of Ark., 393 U.S. 97, 104, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968). "Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values." Id.
Free Exercise of Religion Claim1
Plaintiff argues that the School's refusal to let her adorn her graduation cap with an eagle feather which she holds to be sacred and a fundamental part of her Native American religious beliefs violates her right to free exercise of her religion.
The First Amendment to the United States Constitution states that "Congress shall make no law ... prohibiting the free exercise [of religion]." "While the First Amendment provides absolute protection to religious thoughts and beliefs, the [F]ree [E]xercise [C]lause does not prohibit governments from validly regulating religious conduct." Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 649 (10th Cir.2006) (citing Reynolds v. United States, 98 U.S. 145, 164, 25 L.Ed. 244 (1878)). "Neutral rules of general applicability normally do not raise free exercise concerns even if they incidentally burden a particular religious practice or belief." Id. (citing Employment Div. v. Smith, 494 U.S. 872, 879, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (stating that the Free Exercise Clause "does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)" (internal quotation omitted)). "Thus, a law that is both neutral and generally applicable need only be rationally related to a legitimate governmental interest to survive a constitutional challenge." Id. See also Corder v. Lewis Palmer School Dist. No. 38, 566 F.3d 1219, 1233 (10th Cir.2009).
The undersigned finds that the School's policy of prohibiting any decoration of graduation caps is a neutral policy of general applicability and therefore it need only be rationally related to a legitimate school interest to survive Plaintiff's challenge.
*8 The School demonstrated that the graduation ceremony is a formal ceremony and that the unity of the graduating class as a whole is fostered by the uniformity of the caps which are the most prominently visible part of the graduation regalia viewed by the audience to the graduation. Prohibiting decoration of any graduation cap by any student for any purpose serves these legitimate interests. Based on the application of these established principles the undersigned finds that Plaintiff has not demonstrated a substantial likelihood of success on her First Amendment Free Exercise of Religion claim.
Freedom of Speech Claim
The First Amendment's free speech clause states that "Congress shall make no law ... abridging the freedom of speech." Supreme Court cases make clear that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 592 (1969). However, the Court has held that "the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings," Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986), and that the rights of students "must be 'applied in light of the special characteristics of the school environment.' " Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 266, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988) (quoting Tinker, 393 U.S. at 506, 89 S.Ct. 733, 21 L.Ed.2d 731).
In Bear v. Fleming, 714 F.Supp.2d 972 (D.S.D.2010), the Court applied these principles in a case similar to the one at bar. The undersigned finds the Bear case to be instructive and well reasoned. Its rationale, summarized herein, is applicable to the instant case. In Bear a student sought an injunction to require the school to permit him to wear traditional Lakota clothing and regalia instead of the traditional cap and gown required by the school for the graduation ceremony. The court recognized that the First Amendment protects not only verbal and written expression but also symbols and conduct that constitute symbolic speech. The Court found that Mr. Dreaming Bear's desire to wear Lakota clothing and regalia constituted such protected speech. However, the Court determined that the graduation was a school-sponsored event and the students' speech, including Mr. Dreaming Bear's intended clothing, was school-sponsored speech. As such, the graduation exercises were not a public forum open to public expression of speech. Speech occurring during such a school-sponsored event might reasonable be perceived to bear the imprimatur of the school.
The Court found, therefore, that the school board had a legitimate interest in ensuring that the graduation convey to those present messages that advance the mission and goals of the school. The Court recognized that graduation proceedings celebrate the school's achievement as an institution of learning as well as the academic achievements of the students. Accordingly, the Court found that the school board had an interest in the graduation exercises and the message delivered. The Court found that the school board's cap and gown policy was reasonably related to its legitimate interest in controlling the content of the graduation exercises. As a result, the Court found that it was unlikely that Mr. Dreaming Bear would succeed on the merits of this First Amendment Free Speech claim.
*9 For the reasons articulated by the Court in the Bear case, the undersigned finds that, to the extent Plaintiff in this case asserts that adorning her graduation cap with an eagle feather constitutes speech, she is unlikely to succeed on the merits of that claim. See also, Corder v. Lewis Palmer School District, 566 F.3d 1219, 1225–1230 (10th Cir.2009) (finding school had a legitimate interest in the unwritten policy of reviewing valedictory speeches prior to the graduation ceremony and the First Amendment was not violated by such review).
Oklahoma Religious Freedom Act Claim
The Oklahoma Religious Freedom Act, (ORFA), 51 Okla.Stat. § 253 provides:
A. Except as provided in subsection B of this section, no governmental entity shall substantially burden a person's free exercise of religion even if the burden results from a rule of general applicability.
B. No governmental entity shall substantially burden a person's free exercise of religion unless it demonstrates that application of the burden to the person is:
1. Essential to further a compelling governmental interest; and
2. The least restrictive means of furthering that compelling governmental interest.
The Oklahoma Court of Civil Appeals construed this statute in Steele v. Guilfoyle, 76 P.3d 99 (Ok.Civ.App.2003). There the Court stated that under ORFA a plaintiff must make an initial prima facie showing of a substantial burden on the plaintiff's free exercise of religion before any burden of persuasion shifts to the defendant. The Court also stated "[a] government regulation does not substantially burden religious activity when it merely has an incidental effect that makes it more difficult to practice the religion." Id. at 102 (quoting Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 450–51, 108 S.Ct. 1319, 1326, 99 L.Ed.2d 534 (1988)).
In the Steele case the Oklahoma Court endorsed the following as placing a substantial burden on the capacity to exercise or express beliefs or faith: inhibiting or constraining conduct or expression that manifests some central tenant of the individual's beliefs; meaningfully curtailing the ability to express adherence to the individual's faith; and denying reasonable opportunities to engage in those activities that are fundamental to a person's religion. Steele, 76 P.3d at 102. Although the Oklahoma Court was addressing a prisoner's exercise of his religion, the list is instructive in that it outlines the types of things that will substantially burden a person's free exercise of religion.
In the present case, Plaintiff testified that her religion does not require her to wear the eagle feather at graduation and the failure to wear the feather will not result in any religious detriment to her. The School's policy does not infringe on Plaintiff's ability to wear the eagle feather in any other setting. Further, the School Superintendent testified that Plaintiff could wear the eagle feather on her cap up to the point she enters the graduation ceremony and affix it to the cap afterwards. He also offered to repose for the professional photographer with Plaintiff wearing her eagle feather after the ceremony. The undersigned finds that Plaintiff has not demonstrated that the inability to affix an eagle feather to her graduation cap during the graduation ceremony places a substantial burden on her free exercise of religion.
*10 The undersigned finds that Plaintiff has not demonstrated the likelihood of success on the merits on her ORFA claim.
Irreparable Harm
The undersigned finds that, having failed to demonstrate a violation of her First Amendment Rights or a violation of the ORFA, Plaintiff will not suffer irreparable harm if an injunction is not issued.
Threatened Injury vs. Harm Caused by Injunction
This factor weighs in favor of the School because Plaintiff has not demonstrated she will suffer a cognizable constitutional or legal harm.
Public Interest
The public interest weighs heavily in favor of the ability of the School to control the uniformity and formality of the graduation ceremony for all students.
Conclusion
The undersigned United States Magistrate Judge finds that Plaintiff has not satisfied the burden of showing that the traditional four factors considered in connection with preliminary injunctions weigh heavily and compellingly in her favor. The undersigned therefore RECOMMENDS that Plaintiff's Motion for Preliminary Injunction or Permanent Injunction, [Dkt. 3], be DENIED.
In accordance with 28 U.S.C. § 636(b) and Fed.R.Civ.P. 72(b)(2), a party may file specific written objections to this report and recommendation. At the hearing the parties agreed that such specific written objections must be filed with the Clerk of the District Court for the Northern District of Oklahoma on or before 11:00 a.m. on May 20, 2015. Any response to the objection must be filed on or before 1:00 p.m. on May 20, 2015.
If specific written objections are timely filed, Fed.R.Civ.P. 72(b)(3) directs the district judge to:
determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.
See also 28 U.S.C. § 636(b)(1).
The Tenth Circuit has adopted a "firm waiver rule" which "provides that the failure to make timely objections to the magistrate's findings or recommendations waives appellate review of factual and legal questions." United States v. One Parcel of Real Property, 73 F.3d 1057, 1059 (10th Cir.1996) (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir.1991)). Only a timely specific objection will preserve an issue for de novo review by the district court or for appellate review.