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Marc J. Victor, P.C. 3920 S. Alma School Road, Suite 5 Chandler, Arizona 85248 Telephone: (480) 455-5220 Fax: (480) 755-8286 Vicki A.R. Lopez SBN 010426 vicki@attorneyforfreedom.com Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA MARGARET MARIE SMITH, an individual, ) ) ) Plaintiff, ) ) vs. ) ) STATE OF ARIZONA, a jural entity; ) MARICOPA COUNTY, a jural entity; ) ARIZONA STATE BOARD OF ) EDUCATION, a political subdivision of ) the State of Arizona; MARICOPA ) COUNTY COMMUNITY COLLEGE ) DISTRICT D/B/A MARICOPA ) COMMUNITY COLLEGES; ) PARADISE VALLEY COMMUNITY ) COLLEGE; THE HIGHER LEARNING ) COMMISSION, an Illinois Corporation; ) KELLY BURTON and JOHN DOE ) BURTON, husband and wife; DR. PAUL ) DALE and JANE DOE DALE, husband ) and wife; DR. DENISE ) DIGIANFILIPPO and JOHN DOE ) DIGIANFILIPPO, husband and wife; and ) DR. MARY LOU MOSLEY and JOHN ) DOE MOSLEY, husband and wife, ) ) Defendants. ) ) Cause No.

COMPLAINT (Tort Non-Motor Vehicle)

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Plaintiff, by and through undersigned counsel, hereby alleges as follows: 1. Plaintiff MARGARET MARIE SMITH is and was, at all times relevant

hereto, a resident of Maricopa County, Arizona. 2. Defendant STATE OF ARIZONA is a public jural entity and is subject to

3.

Defendant MARICOPA COUNTY is a public jural entity and is subject to

4.

Defendant ARIZONA STATE BOARD OF EDUCATION is a political

subdivision of the State of Arizona and is subject to suit. 5. Defendant MARICOPA COUNTY COMMUNITY COLLEGE

DISTRICT D/B/A MARICOPA COMMUNITY COLLEGES conducts business in Arizona and is subject to suit. 6. Defendant PARADISE VALLEY COMMUNITY COLLEGE is located in

Arizona and is subject to suit. 7. Defendant THE HIGHER LEARNING COMMISSION, an Illinois

Corporation, provided accreditation to PARADISE VALLEY COMMUNITY COLLEGE and is subject to suit. 8. Upon information and belief, Defendants KELLY BURTON and JOHN

DOE BURTON are residents of the State of Arizona. 9. Upon information and belief, Defendants KELLY BURTON and JOHN

DOE BURTON are and were, at all times relevant hereto, husband and wife and were acting on behalf of their marital community. 10. Upon information and belief, Defendants DR. PAUL DALE and JANE DOE DALE are residents of the State of Arizona.

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11. Upon information and belief, Defendants DR. PAUL DALE and JANE DOE DALE are and were, at all times relevant hereto, husband and wife and were acting on behalf of their marital community. 12. Upon information and belief, Defendants DENISE DIGIANFILIPPO and JOHN DOE DIGIANFILIPPO are residents of the State of Arizona. 13. Upon information and belief, Defendants DENISE DIGIANFILIPPO and JOHN DOE DIGIANFILIPPO are and were, at all times relevant hereto, husband and wife and were acting on behalf of their marital community. 14. Upon information and belief, Defendants DR. MARY LOU MOSLEY and JOHN DOE MOSLEY are residents of the State of Arizona. 15. Upon information and belief, Defendants DR. MARY LOU MOSLEY and JOHN DOE MOSLEY are and were, at all times relevant hereto, husband and wife and were acting on behalf of their marital community. 16. This court has federal question jurisdiction pursuant to 28 U.S.C. 1331 and supplemental jurisdiction over the Plaintiffs claims under Arizona law pursuant to 28 U.S.C 1367. This court also has jurisdiction under 28 U.S.C. 1343. 17. Venue is appropriate in the District Court for the District of Arizona pursuant to 28 U.S.C. 1391(b) 18. This court has the authority to issue a declaratory judgment under 28 U.S.C.
2201 and to issue injunctive relief under 28 U.S.C. 1343 and Fed. R. Civ. P. 65.

19. Margaret Smith served a Notice of Claim upon the State of Arizona in compliance with A.R.S. 12-821.01 on January 20, 2011, upon the appropriate individuals, and said individuals denied this claim in a letter dated February 1, 2011. 20. Margaret Smith served a Notice of Claim upon the Arizona State Board of Education and Maricopa County in compliance with A.R.S. 12-821.01 on January 20,

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2011, upon the appropriate individuals, and said individuals denied this claim in a response dated February 1, 2011. 21. Margaret Smith served a Notice of Claim upon Maricopa Community Colleges, Maricopa County Community College District Office Governing Board, Dr. Paul Dale, Kelly Barton, Dr. Marilyn Cristiano, Dr. Denise Digianfilippo, and Dr. Mary Lou Mosley, in compliance with A.R.S. 12-821.01 on January 24, 2011, upon the appropriate individuals, and said individuals denied this claim by lack of response to Plaintiffs Notice of Claim as of March 28, 2011. 22. Margaret Smith served a Notice of Claim upon The Higher Learning Commission, in Chicago, Illinois, in compliance with A.R.S. 12-821.01 by mailing certified return receipt requested on January 24, 2011, upon the appropriate individuals, and said individuals denied this claim by lack of response to Plaintiffs Notice of Claim as of March 28, 2011. 23. Margaret Smith complied with the Notice of Claim requirements under State law perfecting her right to pursue this claim before this Court. 24. Defendant Maricopa County Community College District owns, operates, controls, leases, maintains and/or manages the employees of Paradise Valley Community College. 25. Defendants State of Arizona and Maricopa County provide funding to Maricopa County Community Colleges, including Paradise Valley Community College. 26. At all times material hereto, Defendants Burton, Dale, Digianfilippo, and Mosley were acting in their capacity as employees of Defendant Maricopa County Community College District, and Defendant Maricopa County Community College District is liable for the acts of its employees under the legal theory of respondeat superior.
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FACTUAL BACKGROUND 27. Ms. Margaret Smith enrolled in Paradise Valley Community Colleges (PVCC) summer 2010 PHI 105, Introduction to Ethics class (the Philosophy Class), from July 5, 2010 August 5, 2010. 28. The Maricopa County Community College District (MCCCD) prescribed that PHI 105 (Introduction to Ethics) cover: Major theories of conduct. Emphasis on normative ethics, theories of good and evil from Plato to present. 29. Based on the course description, the MCCCD Official Course Competencies for PHI 105 and the MCCCD Official Course Outline for PHI 105 (collectively, the Course Description), Ms. Smith expected to learn in the Philosophy Class about the ethical theories and the historical context of those theories of a variety of different philosophers spanning the history of philosophy. 30. Ms. Kelly Burton was the summer session instructor for the Philosophy She used the text book, Philosophical Foundation: A Critical

Class at PVCC.

Analysis of Basic Beliefs (Philosophical Foundation), authored by Surrendra Gangadean, another instructor at PVCC. She failed to teach the Philosophy Class

according to the Course Description and instead taught her own Christian worldview, including the ten Moral Laws of Mr. Gangadean and Christian Apologetics. 31. Ms. Burtons class covered the Ethics (Part III) section of Philosophical

Foundation, chapters 9-19, which presents Mr. Gangadeans view of Moral Law. 32. None of the theories of the philosophers set out in the course description

were taught during the Philosophy Class. 33. Philosophical Foundation generally, and Part III: Ethics specifically, is

theological and therefore totally inappropriate as the primary textbook for any course in the philosophy department, and in particular for the Philosophy Class as described in the Course Description.
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34.

Based upon information obtained from PVCC as a result of a Public

Records Act request, Philosophical Foundation was not approved by the Vice President of Academic Affairs prior to its first use as a textbook in the spring of 2009. 35. Although Dr. Mosley and Dr. Dale represented that Philosophical

Foundation had been previously approved, PVCCs own records indicate that it was first approved by Dr. Cristiano in an email to Drs. Mosley and Digianfilippo dated October 1, 2009. Dr. Mosley concurred with Dr. Cristianos recommendation/decision the following day, October 2, 2009. 36. PVCC was made aware in August 2009 of the unconstitutional religious

instruction (including Christian Apologetics) in Mr. Surrendra Gangadeans PHI 105Introduction to Ethics during the spring 2009 semester when Mr. Barry Scheckner filed a grievance with PVCC. Appeals were also made to MCCCD and a complaint was filed with the Higher Learning Commission alleging accreditation violations at PVCC on Mr. Scheckners behalf. 37. Ms. Burton offered no rational justification for not teaching PHI 105-

Introduction to Ethics as prescribed by the Course Description instead, she told her class that teaching what she was supposed to teach would lead to fragmentation of their lives (without explaining how), so she taught them universal ethical principles moral laws according to Surrendra Gangadean as described in Philosophical Foundation. 38. Ms. Burton failed to cover any of the ethical theories of good and evil from Plato to present as those theories are not covered in Part III of Philosophical Foundation. 39. The MCCCD Residential Faculty Polices 2009-2010 manual provides in relevant part: 3.1 Faculty are entitled to freedom in the classroom in discussing their subject, and they should exercise their best effort to ensure topics are relevant to their
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subject. Faculty will determine curriculum and relevant subject matter for courses, recommend the appropriate pedagogy and textbooks, and other materials relevant to teaching their subject. 40. Ms. Burton abused PVCCs policy on academic freedom because her

religious instruction in the Philosophy Class was not relevant or related to MCCCDs prescribed course competencies as laid out in the Course Description. 41. Ms. Burtons uncritical teaching of Surrendra Gangadeans ten Moral Laws was not directly relevant to an objective, religiously neutral presentation, as stated in the course catalog published by PVCC, of Major theories of conduct. Emphasis on normative ethics. Theories of good and evil from Plato to the present, MCCCDs course competencies or MCCCDs course outline. 42. Ms. Smith was subjected to Ms. Burtons teachings of her own religious beliefs and those of Mr. Gangadeans and Christian Apologetics instead of the broad survey of historical philosophy described in the Course Description. Accordingly, Ms. Burtons religious instruction in the Philosophy Class is inconsistent with, and in violation of, PVCCs policy on academic freedom and a violation of the First and Fourteenth Amendments to the U.S. Constitution and Article 2, Section 12 of the Arizona Constitution. 43. Ms. Smith registered for an Introduction to Ethics class and ended up

sitting in a summer class with Ms. Burton who instead wanted to make use of the class as a means to indoctrinate her students in her own religious beliefs and Christian Apologetics. 44. Because of the indoctrinating nature of Ms. Burtons theological

presentation, Ms. Smith felt inhibited from openly or fully participating in class discussions and honestly answering exam questions out of fear of not receiving full credit (that would be earned with a God-based response).
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45.

Ms. Smith did not get the class she signed up for; she was placed in a

very uncomfortable academic environment where she felt she could not participate freely, openly or honestly. COUNT ONE 42 U.S.C. 1983 46. Plaintiff alleges and incorporates the preceding paragraphs as stated above. 47. Defendant Burton, as a PVCC adjunct professor, acted under color of state law and is liable to Plaintiff pursuant to 42 U.S.C. 1983 and to the United States Constitution for teaching the Philosophy Class in a manner that ignored the Course Description in order to use the class instead solely to indoctrinate her students with her Christian worldview, thereby advancing and endorsing religion in violation of the First and Fourteenth Amendments. 48. Defendant Cristiano, as Division Chair of Communications and Humanities Division, failed in her duty to Plaintiff to ensure that Defendant Burtons instruction in the Philosophy Class was consistent with prescribed course competencies and was taught in a constitutionally impermissible manner. 49. Defendant Mosley, as Vice President of Academic Affairs at PVCC, failed in her duty to Plaintiff to ensure that Defendant Burtons instruction in the Philosophy Class was consistent with prescribed course competencies and was not taught in a constitutionally impermissible manner. 50. Defendant Dale, as President of PVCC, failed in his duty to Plaintiff to ensure that Defendant Burtons instruction in the Philosophy Class was consistent with prescribed course competencies and was not taught in a constitutionally impermissible manner. 51. Defendant Burton abused her academic freedom under MCCCDs own

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52. Defendant Burton failed to cover any of the ethical theories of good and evil from Plato to present as those theories are not covered in Part III of Philosophical Foundation, the course textbook. 53. Defendant Burtons dogmatic teaching of Christian Apologetics is not relevant to the ethical viewpoints of philosophers form Plato to present as prescribed in MCCCDs course competencies. 54. There is no secular purpose for Defendant Burton actions in using the Philosophy Class to indoctrinate her students in her personal religious theology instead of teaching the subject matter described in the Course Description, or for defendants, Dale, Mosley or Cristiano permitting her to do so. COUNT TWO First Amendment, United States Constitution and Arizona Constitution Article 2 12 55. Plaintiff alleges and incorporates the preceding paragraphs as stated above. 56. The Establishment Clause of the First Amendment to the United States Constitution prohibits government officials and persons acting in joint and concerted action with government officials from taking actions which endorse or advance religion, including actions which prefer religion over non-religion. 57. Article 2 Section 12 of the Arizona Constitution prohibits the use of public money or property to be appropriated or applied to any religious worship, exercise or instruction or to the support of any religious establishment. 58. Defendants State of Arizona, Maricopa County, MCCCD and PVCC have appropriated and/or applied public money and property to religious instruction in the form of the Philosophy Class (including, but not limited to, Defendant Burtons salary, facilities and other expenses) in violation of Article 2, Section 12 of the Arizona Constitution.

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59. Defendant Higher Learning Commission negligently accredited Defendant PVCC, knowing, having reason to know, or should have known or ascertained that Defendant PVCC permitted, encouraged and supported class instruction that violated the Establishment Clause of the Fourteenth Amendment and Article 2, Section 12 of the Arizona Constitution. 60. Defendant MCCCD has oversight responsibilities for its constituent community colleges, including PVCC. 61. The Philosophy Class taught by Defendant Burton was and is actually a course in Christian Apologetics and is construed by objective observers to establish a preference for and endorsement of that specific form of Christianity. 62. The actions of PVCC and MCCCD in teaching and approving specific religious instruction under the cloak of teaching philosophy violates the fundamental principle of the Establishment Clause of the First Amendment to the United States Constitution, as well as the Arizona Constitution Article 2, Section 12, by giving the appearance of the governments official support for and advocacy of such religion through government sponsored education. 63. Upon information and belief, PVCC and MCCCD continue to expend public monies for religious instruction by Defendant Burton. 64. The actions of the Defendants are injurious to the interests of the Plaintiff individually, and to all students who have taken the course, are taking the course or will take the course, because the Defendants actions subject the Plaintiff to potential official sanctions in the form of unacceptable grades should there be disagreement with the course content and expose her (and other students) to unwanted endorsements of religion, which violates the Establishment Clause.

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COUNT THREE BREACH OF IMPLIED CONTRACT 65. Plaintiff alleges and incorporates the preceding paragraphs as stated above. 66. PVCC offered a PHI 105, Introduction to Ethics class thought by Defendant Burton in the summer of 2010. 67. The advertised course description for PHI 105 course was Major theories of conduct. Emphasis on normative ethics, theories of good and evil from Plato to present. 68. Plaintiff was interested in taking the class as described in the preceding paragraph and did in fact enroll in said class and paid the related fees required by PVCC. 69. PVCC failed to substantially provide the advertised instruction. 70. As a consequence of PVCCs breach of contract as established in the preceding paragraphs, plaintiff was denied the education she paid for. TRIAL: Plaintiff hereby formally requests a jury trial in the above referenced matter. WHEREFORE, Plaintiff Margaret Smith, for each and every cause of action above, demands the following relief, jointly and severally, against all Defendants as follows: A. Compensatory, general, and special damages in an amount according to

proof at time of trial; B. A declaratory Judgment, declaring that the Defendants actions alleged

herein (1) violated the Plaintiffs rights under the Establishment Clause of the First Amendment to the United States Constitution and therefore (2) violated 42 U.S.C. 1983.

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C.

An injunction, enjoining the Defendants from violating the Establishment

Clause as described herein and ordering the Defendants to properly supervise PVCC faculty, including but not limited to the Defendants, such that they: a. Acknowledge that use of the classroom to advance the religious beliefs of the instructors is not within the bounds of academic freedom and is prohibited by the Constitutions of Arizona and the United States; and b. Immediately cease and desist from (a) proselytizing or teaching their own theology in class in place of the proper subject matter thereof, (b) teaching Christian Apologetics nonobjectively and (c) using Mr. Gangadeans book Philosophical Foundations in the Philosophy Class or similar classes. D. E. F. Reasonable attorneys fees and expenses of litigation; Costs of suit necessarily incurred herein; and Such further relief as the Court deems just and proper.

RESPECTFULLY SUBMITTED this 20th day of July, 2011. MARC J. VICTOR, P.C.

By: 20 21 22 23 24 25 26
/s/ Kathy Clements

/s/Vicki A.R. Lopez Vicki A.R. Lopez Attorney for Plaintiff

CERTIFICATE OF SERVICE I hereby certify that on July 20, 2011 I electronically transmitted the attached document to the Clerks Office by using the CM/ECF System.

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