Document 395490

Post Office Box 540774
Orlando, FL 32854-0774
Telephone: 800•671•1776
Facsimile: 407•875•0770
122 C St. NW, Suite 640
Washington, DC 20005
Telephone: 202•289•1776
Facsimile: 202•289•7474
Post Office Box 11108
Lynchburg, VA 24506-1108
Telephone: 434•592•7000
Facsimile: 434•592•7700
[email protected]
Reply to: Virginia
October 30, 2014
Via Email and Facsimile
Dr. Kamela Patton
Collier County Public Schools
5775 Osceola Tr.
Naples, FL 34109
239-377-0181 (F)
[email protected]
RE: Hosting Performance of High School Chorus at Religious Venue
Dear Superintendent Patton:
I have recently been made aware of the Barron Collier High School Chorus'
longstanding practice of holding its concert at a local church, which has now been
cancelled due to the unjustified complaint of one person. A public school choral event
may be constitutionally held in a venue that happens to be a church. I write to urge
Collier County Public Schools ("the District") to reconsider its decision cancelling the
recital, and to offer pro bono legal representation to defend any challenge that may be
brought if the event is resumed as originally planned.
By way of brief introduction, Liberty Counsel is a national public interest law firm
specializing in constitutional law, particularly free speech, religious freedom, and
church-state matters. We have offices in Orlando, Florida; as well as Virginia, California,
and the District of Columbia; and hundreds of affiliate attorneys across the nation. We
have successfully opposed the overreaching efforts of the American Civil Liberties
Union ("ACLU") in courts across America and have particular expertise in defending
local governments and school districts from attacks of this nature.
I understand that the Barron Collier High School Chorus has been performing at
Moorings Presbyterian Church in Naples for the past four years, because of the
church's ideal location, perfect acoustics, and ample space. Media reports that one
parent complained to the ACLU, which alleged that the church venue was
unconstitutional and that the concert venue must be changed. After the complaint, the
Dr. Kamela Patton
Superintendent, Collier County Schools
October 30, 2014
Page 2
District did not approve the concert at the church location, and it was ultimately
cancelled, thus proving that the location was uniquely suited to the event, and that no
reasonable alternatives were available. District Spokesman Greg Turchetta has stated
that the location is "a great place to perform," in terms of music, but now the District is in
doubt about the location, "on the legal side."
The ACLU’s legal position and threats are baseless and constitutionally infirm.
Collier County Schools does not violate any student’s constitutional rights by simply
using or even leasing a church building for the performance of concert music by the
High School Chorus. Courts have been crystal clear on this point:
The mere operation of a public charter school in leased space in church
premises is not a per se violation of the Establishment Clause. The placement of
public school or public employees into leased space on church premises,
consistent with the teachings of Agostini, does not itself give rise to the
presumption that religion is inculcated in school, not does it create a symbolic
union between church and state, nor does the public payment of money in an
arm's length lease finance religious indoctrination, nor does the lease agreement
give rise to an excessive government to an excessive entanglement with religion
through any demonstrated reason to closely monitor public employees on the
religious premises." Porta v. Klagholz, 19 F. Supp. 2d 290, 302 (D.N.J. 1998)
Thus, if a church can permanently lease a building for operation of a school
without violating the Establishment Clause, then surely two hours in a large, air
conditioned, acoustically ideal room is perfectly acceptable. Moreover, courts have long
"recognized that a significant percentage of serious choral music is based on religious
themes or text,"1 and that choral or choir performances may be performed at church
venues, for reasons that readily come to mind:
Plausible secular reasons...exist for performing school choir concerts in churches
and other venues associated with religious institutions. Such venues often are
acoustically superior to high school auditoriums or gymnasiums, yet still provide
adequate seating capacity. Moreover, by performing in such venues, an
instructor can showcase his choir to the general public in an atmosphere
conducive to the performance of serious choral music." Bauchman for Bauchman
v. W. High Sch., 132 F.3d 542, 554 (10th Cir. 1997).
The Tenth Circuit Court of Appeals also has found "frivolous [a] plaintiff's
argument that his atheistic beliefs do not permit him to enter a church" used as a polling
place;2 and even the ACLU's much-ballyhooed opinion in Elmbrook did "not speculate
whether and when the sanctuary of a church...could hold public school ceremonies in a
Doe v. Duncanville Indep. Sch. Dist., 70 F.3d 402, 407–08 (5th Cir.1995).
Otero v. State Election Bd. of Oklahoma, 975 F.2d 738, 740 (10th Cir. 1992).
Dr. Kamela Patton
Superintendent, Collier County Schools
October 30, 2014
Page 3
constitutionally appropriate manner,"3 as is the case in this instance.
In light of authority set forth above, Liberty Counsel is confident that the Eleventh
Circuit would likewise approve of the church venue in this situation. See Adler v. Duval
County School Board,4 in which Liberty Counsel successfully defended graduation
prayer up to the Eleventh Circuit multiple times.
Therefore, there is no good reason to cancel the concert at Moorings
Presbyterian Church. Liberty Counsel would be pleased to offer a pro bono defense of
the Collier County Schools, should it do the right thing by the students and be
challenged on this issue. Please do not allow the ACLU bullies to ruin the plans and
dreams of the Baron Collier chorus students. Our community deserves better. (Although
our firm is headquartered in Orlando, I am a resident of SW Florida and stand ready to
take swift local action as necessary).
If you wish clarification on any of the points contained in this letter, or would like
to further discuss Liberty Counsel’s experience in these matters and offer of pro bono
legal representation, please do not hesitate to contact us by calling toll free at 1-800671-1776. I look forward to hearing from you.
Horatio G. Mihet†
Via Email
Collier County School Board:
Pat Carroll, Chair
Kathleen Curatolo, Vice Chair
Barbara Berry, Member
Julie Sprague, Member
Roy M. Terry, Member
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
Barron Collier High School
Principal Tammy Caraker
[email protected]
Mr. Jon Fishbane, District General Counsel
[email protected]
Doe ex rel. Doe v. Elmbrook Sch. Dist., 687 F.3d 840, 843 (7th Cir. 2012) cert. denied sub nom.
Elmbrook Sch. Dist. v. Doe, 134 S. Ct. 2283 (2014). (Emphasis added).
Adler v. Duval Cnty. Sch. Bd., 250 F.3d 1330 (11th Cir. 2001)
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