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Bear v. Fleming

May 18, 2010


The opinion of the court was delivered by: Jeffrey L. VIKEN United States District Judge



On May 3, 2010, plaintiff Aloysius Dreaming Bear, a Lakota student and graduating senior at Oelrichs High School, brought suit against the members of the school board and the superintendent of the school district. (Docket 1).

Mr. Dreaming Bear alleges defendants violated his right to free speech under the First Amendment by requiring him to wear a cap and gown over his traditional Lakota clothing at the 2010 graduation proceedings. Id. at ¶ 9.

Mr. Dreaming Bear seeks a preliminary and permanent injunction enjoining defendants from imposing the cap and gown policy on him and other Lakota students at the 2010 and all future graduation events. Id. at p. 3.

Mr. Dreaming Bear also seeks an award of nominal damages and the costs of the action, including reasonable attorney's fees. Id. Also pending before the court is Mr. Dreaming Bear's motion for preliminary and permanent injunction.

(Docket 6). Defendants resist Mr. Dreaming Bear's complaint and motion for injunctive relief. (Docket 21). The court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 & 1343(3). This matter is ripe for adjudication.


The court held a hearing on Mr. Dreaming Bear's request for injunctive relief on May 13, 2010.*fn1 Three witnesses testified at the hearing: Mr. Dreaming Bear; Elizabeth Cook-Lynn, poet, writer, and professor; and Charles Fredrickson, principal of Oelrichs High School. From the evidence and testimony presented at the hearing, the court adduces the following facts.

Mr. Dreaming Bear is a 19-year-old senior at Oelrichs High School located in Oelrichs, South Dakota. He has attended Oelrichs High School since the second semester of his freshman year. He is the president of the senior class comprised of 10 students. The 2010 graduation proceedings are scheduled for May 22, 2010.

Oelrichs High School is a public high school within Oelrichs School District No. 23-3. The school board operates the district. Berline Fleming is the president of the school board, Bonnie Anderson is the vice president, and John Cope, Lance Tlustos, and Lisa Lockhart are members of the school board. Dr. Lawrence Jaske is the superintendent of the school district.

Mr. Dreaming Bear is a lifelong resident of the Pine Ridge Indian Reservation and is a member of the Oglala Sioux Tribe. He is Lakota and a seventh-generation descendent from Chief Red Cloud. Lakota culture has played an important role in Mr. Dreaming Bear's life, and he identifies himself as a Lakota man who takes pride in who he is and where he comes from.

At the beginning of the school year, Mr. Dreaming Bear informed his class sponsor of his intent to wear traditional Lakota regalia and clothing at his graduation. The sponsor informed Mr. Dreaming Bear he could do so because it was the students' graduation. Mr. Dreaming Bear then learned the school board required him to wear a cap and gown over his traditional clothing. As a result, Mr. Dreaming Bear asked his mother to place him on the agenda for the school board meeting to be held on April 12, 2010.

Mr. Dreaming Bear obtained the signatures of nine seniors who supported his decision to wear traditional Lakota clothing instead of a cap and gown. (Exhibit 3).*fn2 The remaining senior indicated she did not know.*fn3 Id.

Prior to the school board meeting, Mr. Dreaming Bear prepared a letter articulating his thoughts and position on the issue. (Exhibit 2). The meeting began at approximately 7 p.m. on April 12, 2010. When called, Mr. Dreaming Bear started to read the letter to the school board; however, he was not allowed to finish because he was told his three minutes had expired. Mr. Dreaming Bear was never told he had only three minutes to speak at the meeting.

Later that evening, the school board informed Mr. Dreaming Bear of its decision requiring him to wear a cap and gown over his traditional Lakota clothing. However, the school board clarified Mr. Dreaming Bear would need to wear a cap and gown only as he walked across the stage to receive his diploma; once he received his diploma, he immediately could remove the cap and gown as he exits the stage and hang it in an area provided for that purpose. The school board informed Mr. Dreaming Bear all graduating students must wear a cap and gown when receiving their diploma. Nine of the ten graduating seniors are Lakota.

Oelrichs High School issues a student-parent handbook. (Exhibit 4). Each student signs a form acknowledging receipt of the handbook.

Mr. Dreaming Bear testified he signed the form (Exhibit 5), but did not agree with all of the handbook's provisions. The handbook provides the following description of the graduation proceedings:

Graduation is traditionally held on the third or fourth Saturday of May. The students of the class will take an active role in planning their graduation. The standards of good taste and dignity will be the rule for this activity. The class should decide on the class sponsors, colors, cap & gowns, class motto, class officers, commencement speaker, and the guides and ushers.

The valedictorian and salutatorian will have the opportunity of addressing the class at the graduation exercise. Their class sponsor will work with them on their presentation and approve it with the principal. (Exhibit 4 at p. 6).

Mr. Dreaming Bear testified he considered the graduation to be the students' event, and, thus, he should be allowed the wear the clothing of his choice. Mr. Dreaming Bear testified he was acting on behalf of future generations as it was important to him as a Lakota warrior to protect his people and stand up for what is right.

Charles Fredrickson, principal of Oelrichs High School, described the planned May 22, 2010, graduation exercises. Mr. Fredrickson has been an educator and administrator for approximately 25 years and has been the principal in several tribal schools. Dr. Lawrence Jaske, superintendent of Oelrichs School District, filed an affidavit also describing the graduation proceedings. (Docket 21, Exhibit A). The court also reviewed a copy of the last working draft of the graduation program. (Exhibit 101).

All of the events associated with the graduation, including the feather and plume and star quilt ceremonies, will occur in the school's gymnasium in full view of the audience. A portable stage will be used when handing out the diplomas, with chairs set up in front of the stage for the audience. The proceedings will begin at 1 p.m. with a feather and plume ceremony. The graduating seniors are encouraged to wear traditional native clothing and regalia. A holy man or medicine man will bless the feathers and plumes. Honoring songs may be sung at this time. Each graduating senior is called to the front of the gymnasium where a person of the student's choice, generally a parent or guardian, will tie onto the student a feather (for a male student) or plume (for a female student). This ceremony may last an hour or longer. The purpose of this traditional Lakota ceremony is to acknowledge the accomplishments of the graduating seniors.

After the feather and plume ceremony, the graduating seniors will exit the gymnasium and then re-enter as a unified class wearing caps and gowns. They will be seated with kindergarten and eighth grade students. After the welcoming address by Dr. Jaske, Mr. Chris Eagle Hawk will offer a prayer. The kindergarten and eighth grade students will then be "promoted." The valedictorian and salutatorian will speak briefly, scholarships will be awarded, and a speaker will provide the commencement address, followed by a senior slide show.

Each senior is presented to the audience individually to receive his or her diploma from the school board president. The student will cross the stage in a cap and gown, receive his or her diploma, and exit the stage, removing and hanging up the cap and gown if desired. The student then will be honored with a star quilt and may be wrapped in the quilt if desired.*fn4 The star quilt ceremony will take place in the center aisle directly in front of the stage, again in full view of the audience. There is no set time limit for the star quilt ceremony as it will depend on the number of quilts each student will receive from family members and friends. Once the student is honored by the star quilt(s), the next student will be presented and will walk across the stage to receive his or her diploma and then the star quilt(s). Mr. Dreaming Bear will be required to wear a cap and gown over his traditional regalia for a total of approximately 30 minutes. The graduation proceedings are expected to last at least two hours and perhaps longer.

Students who do not wear the cap and gown will still obtain their diploma; however, it is unclear if those students will be allowed to participate in the graduation events. Mr. Fredrickson testified the cap and gown are symbols of the students' academic achievement and of their readiness to move forward in life. The cap and gown are "academic measures of recognition" and are symbolic of the unity of the 2010 graduating class. Mr. Fredrickson acknowledged Mr. Dreaming Bear's message is important, yet noted the school board's message in honoring academic achievement is also important.

Mr. Dreaming Bear testified he did not learn of the feather and plume and star quilt ceremonies until recently and sometime after his appearance before the school board on April 12, 2010. Dr. Jaske asked Mr. Dreaming Bear to participate in planning the ceremonies, but Mr. Dreaming Bear did not.

Mr. Dreaming Bear understood the significance of the ceremonies. The ceremonies honor individuals who have attained significant achievement.

Mr. Dreaming Bear acknowledged the school board has an interest in organizing and running the graduation proceedings. He also acknowledged the audience would see him for most of the planned proceedings garbed in his traditional Lakota clothing and would recognize his pride in his people and culture. Mr. Dreaming Bear recognized a cap and gown are universal symbols of learning, achievement, and academic success, but pointed out traditional Lakota clothing is as well.

Mr. Dreaming Bear testified he saw no difference in the symbolism of wearing a cap and gown or traditional Lakota clothing when receiving his diploma as both represent academic achievement. Yet, he maintained he should be allowed to receive his diploma without wearing a cap and gown over his traditional Lakota clothing. Mr. Dreaming Bear indicated his position remained unchanged even though the feather and plume and star quilt ceremonies were added to the graduation proceedings.

Professor Elizabeth Cook-Lynn testified as to the importance of culture and heritage to Lakota people. Professor Cook-Lynn is a poet, writer, professor emerita of English and Native American Studies at Eastern Washington University, and a visiting professor at the University of California at Davis.*fn5

She is Santee and Yankton Dakota. Professor Cook-Lynn testified traditional clothing is a tribal symbol and personal obligation. A high school graduation is of ceremonial significance to a Lakota person. She stated ceremonial life expresses who a native person is and where he or she comes from.

Professor Cook-Lynn expressed no objection to the feather and plume and star quilt ceremonies. Indeed, she believed these ceremonies were a "good start," although not a "good ending." Nor did she object to the wearing of a cap and gown, acknowledging they are universal symbols of high honor and academic achievement. Professor Cook-Lynn's only objection was that Mr. Dreaming Bear cannot express his connection to his tribe and people as he wishes. Professor Cook-Lynn stated traditional Lakota dress has the same significance as a cap ...

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