LAW OFFICES OF PAUL M. HOFFMAN, Concord Building, Penthouse
66 West Flagler Street, Miami, Florida 33130 - Telephone 371-8311; Fax 371-8254
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 98-6290-CIV-HURLEY MAGISTRATE JUDGE LYNCH |
JODI HOFFMAN, individually and as mother
and next friend of NICOLE HOFFMAN,
DUSTIN HOFFMAN and DONALD HOFFMAN,
her minor children,
Plaintiffs,
vs.
THE SCHOOL BOARD OF
BROWARD COUNTY, FLORIDA,
Defendant.
_______________________________________/
FOURTH AMENDED COMPLAINT
COMES NOW, Plaintiff, JODI HOFFMAN, individually, and as mother and next friend of DONALD, DUSTIN and NICOLE HOFFMAN, her minor children, by and through undersigned counsel and sues Defendant BROWARD COUNTY SCHOOL BOARD and says:
JURISDICTIONAL ALLEGATIONS
1. This is a cause of action for injunctive relief and money damages in excess of $75,000.00, exclusive of costs and interests.
2. Jurisdiction is premised upon 28 U.S.C. Section 1331 in that Plaintiffs allege violations of the First and Fourteenth Amendments to the United States Constitution and 42 U.S.C. Section 1983 as well as several pendent state claims.COMMON ALLEGATIONS
3. At all times material, Plaintiff JODI HOFFMAN was and is a taxpayer and resident of Broward County, Florida. 4. At the time of the filing of the original Complaint on May 1, 1997, Plaintiff's three minor children were students in Broward County Schools. Plaintiff's daughter, NICOLE, attended Indian Trace Elementary School; her sons DUSTIN and DONALD attended Tequesta Trace Middle School, each located in the city of Weston. 5. At all times material, Defendant is and was a political subdivision of the State of Florida and is in all respects sui juris. 6. All transactions and occurrences alleged herein took place in Broward County, within the Southern District of Florida. 7. At all times material, Defendant School Board taught a curriculum in Human Sexuality which violated the rights of the Plaintiffs. Defendant School Board's actions were willful, intentional, deliberate and repetitive and part of a pattern intended to deny Plaintiffs their rights under Federal and Florida law. 8. Plaintiff JODI HOFFMAN has complied with all conditions precedent to the bringing of this action including all notice requirements or same have been waived by Defendant.COUNT I
VIOLATION OF PLAINTIFF'S FIRST AMENDMENT RIGHTS
(FREEDOM OF RELIGION)
9. Plaintiff JODI HOFFMAN reavers and realleges paragraphs one through eight (1-8) as if fully set forth herein.
10. At all times material, Plaintiff JODI HOFFMAN held sincere religious beliefs about the wrongfulness of homosexuality, abortion, pornography and premarital sex. The free exercise of her sincere and deeply held religious beliefs is protected by the First Amendment to the United States Constitution.
11. At the time of the filing of the original Complaint, and upon information and belief, continuing at present, Defendant BROWARD COUNTY SCHOOL BOARD's curriculum at Indian Trace Elementary School and Tequesta Trace Middle School included instruction in Human Sexuality and or HIV/AIDS instruction, pursuant to Florida Statute 233.0672.
12. Plaintiff JODI HOFFMAN's rights to the Free Exercise of her sincerely held religious beliefs were coercively burdened by Defendant's compulsory curriculum in Human Sexuality and/or HIV/AIDS given to her minor children DUSTIN and DONALD.
13. Defendant's compulsory curriculum given to Plaintiff JODI HOFFMAN's minor Plaintiff sons, DUSTIN and DONALD and/or minor Plaintiff daughter, NICOLE included:
a) Using an ABC Television laser disc video which contained advice on how to obtain an abortion, what states do not enforce their abortion laws, how much abortions cost and how children can receive abortions without their parents finding out. The laser disc video also told these students that children who view just one hour of music videos are more likely to engage in premarital sex.
b) Failing to teach her minor sons, DUSTIN and DONALD that abstinence from sexual activity outside of marriage is the expected standard for all school age children while teaching the benefits of monogamous, heterosexual marriage;
c) Failing to teach her minor sons, DUSTIN and DONALD that abstinence from sexual activity is a certain way to avoid out-of-wedlock pregnancy, sexually transmitted diseases and other associated health problems;
d) Giving inappropriate, incomplete and inaccurate information about homosexuality by teaching that it is an appropriate lifestyle for children and by loading up the Tequesta Trace Middle School Media Center with dozens of stories and articles which justify, favor and/or condone homosexuality, gay marriage and cross-dressing;
e) Teaching about sexually transmitted diseases in such a way as to encourage children to make decisions about their health without the guidance of their parents.
f) Making sexually suggestive advertisements for nude strip clubs, escort services, massage parlors and pornographic book and video stores part of the compulsory curriculum in Geography given to her minor son, DUSTIN;
g) Teaching that there is not evidence that masturbation is harmful;
h) Telling her minor sons, DONALD and DUSTIN, that they alone could decide when and if to engage in sexual relations, without reference to Florida law or the children's religious upbringing;
i) Giving all three minor Plaintiff children newspapers to use in classroom assignments. Newspapers contain biased articles, stories and opinions, as well as advertisements which both offend and burden Plaintiff JODI HOFFMAN's deeply held religious beliefs.
14. Plaintiff, JODI HOFFMAN did not and does not allow her minor children, Plaintiffs herein, to view newspaper advertisements for sexually suggestive businesses such as totally nude strip clubs offering naked friction and/or lap dancing, escort services, massage parlors and other so-called adult services.
15. As a result of the actions of the Defendant as aforesaid, Plaintiff JODI HOFFMAN has suffered a violation and infringement of her constitutional rights under the First Amendment.
16. Unless and until an injunction against Defendant teaching this illegal, unconstitutional curriculum is issued, Plaintiff's minor children are subject to this curriculum as aforesaid, should they return to public school in the fall and Plaintiff JODI HOFFMAN's rights as a parent will continue to be violated.
17. An injunction is an appropriate remedy for Defendant's violations because Plaintiff JODI HOFFMAN and her minor children have no adequate remedy at law. Exposure to Defendant's curriculum as aforesaid influences the minor Plaintiffs' morals and religious beliefs and Plaintiff JODI HOFFMAN's sincere religious beliefs will be burdened. There is a substantial likelihood of success on the merits of this lawsuit and Plaintiffs will suffer irreparable harm if an injunction is not granted.
18. In addition, an injunction, if issued, will not disservice the public interest since the public's legitimate interest is in the teaching of a legal curriculum. Any threatened harm to the BROWARD COUNTY SCHOOL BOARD is outweighed by the threatened harm to Plaintiffs.
WHEREFORE, Plaintiff JODI HOFFMAN requests this Honorable Court find that Defendant's curriculum violated Plaintiff JODI HOFFMAN's constitutional rights under the First Amendment. Plaintiff JODI HOFFMAN requests this Honorable Court issue an emergency temporary and permanent injunction against Defendant teaching the curriculum as aforesaid and all other damages allowed by law.
COUNT II
VIOLATION OF PLAINTIFF'S FOURTEENTH AMENDMENT RIGHTS
(SUBSTANTIVE DUE PROCESS)
19. Plaintiff reavers and realleges paragraphs one through eight (1-8), eleven (11) and thirteen through seventeen (13-17) as if fully set forth herein.
20. At the time of the filing of the original Complaint, and upon information and belief as of the filing of the Fourth Amended Complaint, Defendant BROWARD COUNTY SCHOOL BOARD had in effect a School Board Policy numbered 6101 which required, in part, that all curriculum materials:
a) Have literary, aesthetic or social value;
b) Be free from bias;
c) Help students gain an awareness and understanding of the many contributions made to our society by minorities, ethnic groups and women;
d) Be appropriate in content and references;
e) Be accurate in content.
21. At all times material, Plaintiff JODI HOFFMAN had a fundamental right to control the upbringing and nurture of the Plaintiff minor children and to control the sexual activity of her minor children, as well as a right to familial privacy, protected by the Fourteenth Amendment to the United States Constitution.
22. The provisions of Defendant BROWARD COUNTY SCHOOL BOARD's Policy 6101 conferred a protected liberty interest on the Plaintiffs.
23. The Defendant BROWARD COUNTY SCHOOL BOARD has no legitimate interest in teaching a curriculum that violates School Board Policy 6101.
24. Plaintiff JODI HOFFMAN's rights to control the nurture, upbringing and sexual activity of her minor Plaintiff children were violated by Defendant. In addition to violations previously alleged in paragraph thirteen (13) above, Defendant's curriculum is a coercive burden on the right of Plaintiff JODI HOFFMAN to direct and control the upbringing of the minor Plaintiffs by:
a) Providing her minor son DUSTIN with NC-17 rated video games to play with (NC-17 means not recommended for children under age 17).
b) Providing Plaintiff JODI HOFFMAN'S minor daughter with instruction in Human Sexuality and/or HIV/AIDS instruction after having exercised her right to opt said child out of such instruction.
25. As a result of the foregoing, Plaintiff JODI HOFFMAN's constitutional rights under the Fourteenth Amendment were violated. Defendant's curriculum constituted a compulsory, unnecessary and harmful intrusion on Plaintiff JODI HOFFMAN's rights to rear, direct and control the upbringing and sexual activity of her children and she was and continues to be threatened to be damaged thereby.
WHEREFORE, Plaintiff JODI HOFFMAN requests this Honorable Court find that Defendant's curriculum violated Plaintiff JODI HOFFMAN's constitutional rights under the Fourteenth Amendment. Plaintiff JODI HOFFMAN requests this Honorable Court issue an emergency temporary and permanent injunction against Defendant teaching the curriculum as aforesaid and all other damages allowed by law.
COUNT III
VIOLATION OF 42 U.S.C. 1983
26. Plaintiff JODI HOFFMAN reavers and realleges paragraphs one through eight (1-8) as if set forth herein.
27. At all times material hereto Defendant BROWARD COUNTY SCHOOL BOARD taught Human Sexuality and/or HIV/AIDS instruction in Indian Trace Elementary School.
28. Pursuant to Florida Statute 233.061(3), Plaintiff JODI HOFFMAN opted her minor daughter, NICOLE, out of Human Sexuality and/or HIV/AIDS instruction in Indian Trace Elementary School; Plaintiff JODI HOFFMAN also opted her minor sons, DONALD and DUSTIN, out of portions of Defendant's Human Sexuality instruction in Tequesta Trace Middle School.
29. Despite Plaintiff JODI HOFFMAN's opting her daughter, NICOLE, out of Human Sexuality and/or HIV/AIDS instruction, NICOLE was given part of the instruction anyway.
30. When Plaintiff JODI HOFFMAN opted all three of her minor children out of instruction in Human Sexuality and/or HIV/AIDS , the children were punished for it, in the following particulars:
a) Plaintiff's minor daughter, NICOLE, was required to spend the day baby-sitting for a Kindergarten class as a punishment for being opted out of instruction in Human Sexuality and/or HIV/AIDS instruction;
b) Plaintiff's minor child, DONALD, was assigned study hall and was given extra work to do. He was also told that if he didn't attend instruction in Human Sexuality and/or HIV/AIDS instruction, he would be given extra assignments in other courses.
c) Plaintiff's minor child, DUSTIN, was ridiculed by the Broward County School Police Officer for not receiving instruction in Human Sexuality and/or HIV/AIDS.
31. At all times material, Florida Statute 233.061 (3) created a protected liberty interest and civil rights in Plaintiff JODI HOFFMAN's minor children because said Statute prohibits children from being punished by schools like Defendant's if the children are opted out of instruction in Human Sexuality.
32. As a result of Defendant's actions as aforesaid, Plaintiff JODI HOFFMAN and the three minor Plaintiff children were injured and damaged thereby.
WHEREFORE, Plaintiff JODI HOFFMAN and the minor Plaintiffs individually requests judgment against Defendant for all damages available under 42 U.S.C. 1983.
COUNT IV
VIOLATION OF FLORIDA STATUTE 233.061 (3)
(VIOLATION OF THE OPT-OUT PROGRAM)
33. Plaintiff JODI HOFFMAN reavers and realleges paragraphs one through eight (1-8) and sixteen through eighteen (16-18).
34. At all times material, Florida Statute 233.061(3) provided an opt-out provision.
35. The opt-out provision expressly provides that no child shall be punished for opting out of instruction in Human Sexuality and/or HIV/AIDS.
36. Despite the clear mandate of 233.061(3), Plaintiff JODI HOFFMAN'S minor children were punished in the following particulars:
a) Plaintiff's minor daughter, NICOLE, was required to spend the day baby-sitting for a Kindergarten class and missed out on Science and/or Art s a punishment for being opted out of instruction in Human Sexuality and/or HIV/AIDS instruction;
b) Plaintiff's minor child, DONALD, was assigned study hall and was given extra work to do. He was also told that if he didn't attend instruction in Human Sexuality and/or HIV/AIDS instruction, he would be given extra assignments in other courses.
c) Plaintiff's minor child, DUSTIN, was ridiculed by the Broward County School Police Officer for not receiving instruction in Human Sexuality and/or HIV/AIDS.
37. As a result of Defendant's conduct in punishing Plaintiff JODI HOFFMAN's minor children, Plaintiff JODI HOFFMAN and the three minor Plaintiffs were damaged. Plaintiff JODI HOFFMAN's children suffered a loss of educational opportunity.
WHEREFORE, Plaintiffs seek judgment from Defendant for compensatory damages and an emergency temporary and permanent injunction which orders Defendant to comply with the provisions of Florida Statute 233.061 (3). Plaintiff JODI HOFFMAN demands trial by jury of all issues so triable.
COUNT V
VIOLATION OF FLORIDA STATUTE 233.0672
38. Plaintiff JODI HOFFMAN reavers and realleges paragraphs one through eight (1-8), eleven (11) and thirteen through seventeen (13-17) as if fully set forth herein.
39. At all times material hereto, Florida Statute 233.0672 provides that curriculum in HIV/AIDS and/or Human Sexuality shall:
a) Teach abstinence from sexual activity outside of marriage as the expected standard for all school-age children while teaching the benefits of monogamous, heterosexual marriage;
b) Emphasize that abstinence from sexual activity is a certain way to avoid out-of-wedlock pregnancy, sexually transmitted diseases, including acquired immune deficiency syndrome and other health problems;
c) Provide instruction and material that is appropriate for the grade and age of the student.
40. At all times material, Defendant's curriculum violated Florida Statute 233.0672 as previously alleged and Plaintiffs were damaged thereby.
WHEREFORE, Plaintiff JODI HOFFMAN requests this Honorable Court issue an emergency temporary and permanent injunction against Defendant teaching the curriculum as aforesaid and all other damages allowed by law.
COUNT VI
VIOLATION OF FLORIDA STATUTE 286.011
41. Plaintiff JODI HOFFMAN reavers and realleges paragraphs one through eight (1-8).
42. On or about March 18, 1997 the Defendant advertised a public meeting to amend or revise School Board's anti-discrimination policy 4101.1.
43. The meeting on March 18, 1997 was held to add "sexual orientation" as a protected class in the Defendant's anti-discrimination policy and make other changes.
44. The notice of the meeting did not comply with Florida Statute 286.011 because it did not provide reasonable notice to the public of the nature of the proposed change to the anti-discrimination policy to include "sexual orientation" as a protected class nor did Defendant specifically define "sexual orientation" in its anti-discrimination policy.
45. Upon information and belief, Defendant had already decided to change the policy to add "sexual orientation" as a protected class prior to any public meeting or discussion on this issue. This decision was made in violation of Florida law pertaining to the Sunshine Act, because Defendant knew this decision was controversial and opposed by a large segment of the residents and taxpayers of Broward County. Florida law requires that persons be given a reasonable opportunity to refute ex parte communications.
WHEREFORE, Plaintiff JODI HOFFMAN seeks a finding from this Honorable Court that passage of the Anti-Discrimination Amendment to Policy 4101.1 violated Florida Statute 286.011 and an Order from the Court invalidating the policy based on the violation of the Sunshine Act.
COUNT VII
VIOLATION OF FLORIDA
RELIGIOUS FREEDOM RESTORATION ACT OF 1998
46. Plaintiff reavers and realleges paragraphs one through eight (1-8) and ten through eighteen (10-18) as if fully set out herein.
47. As a result of the foregoing, Plaintiff JODI HOFFMAN's religious freedom was coercively burdened and Plaintiff JODI HOFFMAN's rights were damaged thereby.
WHEREFORE, Plaintiff JODI HOFFMAN requests this Honorable Court issue an emergency temporary and permanent injunction against Defendant teaching the curriculum as aforesaid and all other damages allowed by law.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the original of the foregoing was hand delivered to the Court and a true and correct copy was delivered via U.S. mail to: EDWARD J. MARKO, ESQ., and/or ROBERT P. VIGNOLA, ESQ. at 600 S.E. 3rd Avenue - 11th Floor, Ft. Lauderdale, FL 33301, this 6th day of July, 1998.
LAW OFFICES OF PAUL M. HOFFMAN, P.A., Attorneys for Plaintiff, JODI HOFFMAN Individually and as mother and best friend of NICOLE HOFFMAN, DUSTIN HOFFMAN and DONALD HOFFMAN, her three minor children Concord Building - Penthouse One 66 West Flagler Street Miami, Florida 33130 Telephone (305) 371-8311 Telefax: (305) 371-8254 By:____________________________________ PAUL M. HOFFMAN Florida Bar No.: 0279897 |