Caleigh Wood v. Evelyn Arnold

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-1430
CALEIGH WOOD,
Plaintiff - Appellant,
and
JOHN WOOD; MELISSA WOOD, on behalf of her minor child, C.W.,
Plaintiffs,
v.
EVELYN ARNOLD; SHANNON MORRIS,
Defendants - Appellees,
and
BOARD OF EDUCATION OF CHARLES COUNTY; CHARLES COUNTY
PUBLIC SCHOOLS,
Defendants,
------------------------------
CHRISTIAN ACTION NETWORK,
Amicus Supporting Appellant.
Appeal from the United States District Court for the District of Maryland, at Greenbelt.
George Jarrod Hazel, District Judge. (8:16-cv-00239-GJH)
Argued: December 11, 2018 Decided: February 11, 2019
Before KEENAN, WYNN, and HARRIS, Circuit Judges.
Affirmed by published opinion. Judge Keenan wrote the opinion, in which Judge Wynn
and Judge Harris joined.
ARGUED: Kate Oliveri, THOMAS MORE LAW CENTER, Ann Arbor, Michigan, for
Appellant. Andrew G. Scott, PESSIN KATZ LAW, P.A., Towson, Maryland, for
Appellees. ON BRIEF: B. Tyler Brooks, Richard Thompson, THOMAS MORE LAW
CENTER, Ann Arbor, Michigan, for Appellant. Edmund J. O’Meally, Lisa Y. Settles,
PESSIN KATZ LAW, P.A., Towson, Maryland, for Appellees. David W.T. Carroll,
CARROLL, UCKER & HEMMER LLC, Columbus, Ohio, for Amicus Curiae.
2
BARBARA MILANO KEENAN, Circuit Judge:
In this case, we consider whether two statements concerning Islamic beliefs,
presented as part of a high school world history class, violated a student’s First
Amendment rights under either the Establishment Clause or the Free Speech Clause. The
student, Caleigh Wood, contends that school officials Evelyn Arnold and Shannon Morris
(the defendants) used the statements about Islam to endorse that religion over
Christianity, and compelled Wood against her will to profess a belief in Islam.
Upon our review, we conclude that the challenged coursework materials, viewed
in the context in which they were presented, did not violate Wood’s First Amendment
rights, because they did not impermissibly endorse any religion and did not compel Wood
to profess any belief. We therefore affirm the district court’s judgment awarding
summary judgment in favor of the defendants.
I.
During the 2014-2015 school year, Wood was an eleventh-grade student at La
Plata High School, a public high school in Charles County, Maryland. Arnold was La
Plata’s principal, and Morris was employed as one of the school’s vice-principals.
As an eleventh-grade student, Wood was required to take a world history course,
which was part of the school’s social studies curriculum. The year-long course covered
time periods from the year “1500 to the [p]resent.” Among the topics covered in the
course were the Renaissance and Reformation, the Enlightenment period, the Industrial
3
Revolution, and World Wars I and II. The topics were divided into separate units, with
each unit generally being taught over a period of between ten and twenty days.
The smallest unit of the world history course, encompassing five days, was
entitled “The Muslim World.” The unit was “designed to explore, among other things,
formation of Middle Eastern empires including the basic concepts of the Islamic faith and
how it along with politics, culture, economics, and geography contributed to the
development of those empires.”
As part of the “Muslim World” unit, Wood’s teacher presented the students with a
PowerPoint slide entitled “Islam Today,” which contrasted “peaceful Islam” with “radical
fundamental Islam.” The slide contained the statement that “Most Muslim’s [sic] faith is
stronger than the average Christian” (the comparative faith statement) (underlining in
original). The school’s content specialist, Jack Tuttle, testified that use of the
comparative faith statement was inappropriate, and that he would have advised a teacher
who was considering teaching this statement “[n]ot to do that.”
Wood also was required to complete a worksheet summarizing the lesson on
Islam. The worksheet addressed topics such as the growth and expansion of Islam, the
“beliefs and practices” of Islam, and the links between Islam, Judaism, and Christianity.
Part of the worksheet required the students to “fill in the blanks” to complete certain
information comprising the “Five Pillars” of Islam. Included in that assignment was the
statement: “There is no god but Allah and Muhammad is the messenger of Allah[,]” a
4
portion of a declaration known as the shahada (the shahada assignment). 1 For ease of
reference, we collectively refer to the comparative faith statement and the shahada
assignment as the “challenged materials.”
Wood’s father objected to the use of the challenged materials. He asserted to the
defendants that Islam should not be taught in the public school and demanded that his
daughter be given alternative assignments. He directed his daughter to refuse to complete
any assignment associated with Islam on the ground that she was not required to “do
anything that violated [her] Christian beliefs.” Wood’s failure to complete the
assignments that, in her view, “promot[ed] Islam,” resulted in Wood receiving a lower
percentage grade for the course but did not affect her final letter grade.
Wood later sued the defendants, 2 alleging that they violated the Establishment
Clause by “impermissibly endors[ing] and advanc[ing] the Islamic religion.” Wood
further alleged that the defendants violated the Free Speech Clause of the First
Amendment by requiring her to complete the shahada assignment, thereby “depriv[ing]
[her] of her right to be free from government compelled speech.” 3 The district court
granted the defendants’ motion for summary judgment. Wood now appeals.
1
The underlined words reflect the parts of the statement that the students were
required to complete.
2
At the time the complaint was filed, Wood was a minor. Therefore, the suit was
initially brought on Wood’s behalf by her parents. The complaint later was amended to
name Wood as a plaintiff once she reached the age of majority.
3
Wood’s father also asserted separate claims for retaliation under the First
Amendment and due process violations related to Arnold’s decision to ban him from the
(Continued)
5
II.
We review the district court’s award of summary judgment de novo. See Buxton
v. Kurtinitis, 862 F.3d 423, 427 (4th Cir. 2017). Wood contends that the district court
erred in awarding summary judgment to the defendants on both her Establishment Clause
claim and her Free Speech Clause claim. We address each claim in turn.
A.
We begin with Wood’s Establishment Clause claim. Wood contends that through
the comparative faith statement, “Most Muslim’s [sic] faith is stronger than the average
Christian,” the defendants endorsed a view of Islam over Christianity in violation of the
Establishment Clause. Wood also argues that the assignment requiring students to write a
portion of the shahada impermissibly advanced the Islamic religion and compelled Wood
to “den[y] the very existence of her God.” According to Wood, the challenged materials
lacked any secular purpose and had the “effect of promoting and endorsing Islam.” We
disagree with Wood’s argument.
The Establishment Clause provides that “Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const.
amend. I, cl. 1. In evaluating an Establishment Clause claim, we apply the three-prong
test set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971). See Mellen v. Bunting, 327
La Plata High School premises. Those claims were dismissed by the district court, and
have not been pursued on appeal.
6
F.3d 355, 370 (4th Cir. 2003) (“[W]e have emphasized that the Lemon test guides our
analysis of Establishment Clause challenges.”); Koenick v. Felton, 190 F.3d 259, 264 (4th
Cir. 1999) (“[T]his Court must rely on Lemon in evaluating the constitutionality of
[government action] under the Establishment Clause.” (internal quotation marks and
citation omitted)). Under this test, to withstand First Amendment scrutiny, “government
conduct (1) must be driven in part by a secular purpose; (2) must have a primary effect
that neither advances nor inhibits religion; and (3) must not excessively entangle church
and State.” Moss v. Spartanburg Cty. Sch. Dist. 7, 683 F.3d 599, 608 (4th Cir. 2012)
(citing Lemon, 403 U.S. at 612-13). The government violates the Establishment Clause if
the challenged action fails any one of the Lemon factors. Buxton, 862 F.3d at 432
(quoting Edwards v. Aguillard, 482 U.S. 578, 583 (1987)).
1.
Before applying the Lemon test, we must determine the proper scope of our
inquiry, namely, whether we should examine the challenged materials in isolation or in
the broader context of the world history curriculum. Wood asserts that we must analyze
each statement on its own, apart from the subject matter of the class. We disagree with
Wood’s contention.
The Supreme Court has emphasized that for purposes of an Establishment Clause
analysis, context is crucial. See County of Allegheny v. ACLU Greater Pittsburgh
Chapter, 492 U.S. 573, 597 (1989) (“[T]he effect of the government’s use of religious
symbolism depends on its context.”), abrogated on other grounds by Town of Greece v.
Galloway, 572 U.S. 565 (2014). To “[f]ocus exclusively on the religious component of
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any activity would inevitably lead to [the activity’s] invalidation under the Establishment
Clause.” Lynch v. Donnelly, 465 U.S. 668, 679-80 (1984). Thus, when determining the
purpose or primary effect of challenged religious content, courts, including this Circuit,
consistently have examined the entire context surrounding the challenged practice, rather
than only reviewing the contested portion. See Lambeth v. Bd. of Comm’rs of Davidson
Cty., 407 F.3d 266, 271 (4th Cir. 2005); see also Freedom from Religion Found., Inc. v.
City of Warren, 707 F.3d 686, 692-93 (6th Cir. 2013); Croft v. Perry, 624 F.3d 157, 168
(5th Cir. 2010); Fleischfresser v. Dirs. of Sch. Dist. 200, 15 F.3d 680, 688-89 (7th Cir.
1994); Cammack v. Waihee, 932 F.2d 765, 787 (9th Cir. 1991); Smith v. Bd. of Sch.
Comm’rs of Mobile Cty., 827 F.2d 684, 692 (11th Cir. 1987).
Indeed, common sense dictates a context-driven approach. Viewing the
challenged statements in isolation would violate the analysis mandated by the Supreme
Court in Lemon. As we have stated, Lemon first requires us to consider whether teaching
the challenged materials had some secular purpose. Moss, 683 F.3d at 608. Such a
determination can only be made by considering the academic framework in which those
materials were presented. See McCreary County v. ACLU, 545 U.S. 844, 862 (2005);
Adland v. Russ, 307 F.3d 471, 481 (6th Cir. 2002) (“[C]ontext is critically important in
evaluating a state’s proffered secular purpose.”). And in requiring us to determine
whether the primary effect of the challenged materials was to advance or inhibit religion,
Moss, 683 F.3d at 608, Lemon necessarily requires consideration of the contextual setting
in which those materials were used, see Lambeth, 407 F.3d at 271 (explaining that the
“proper analysis” of Lemon’s second prong requires examining the effect of a religious
8
display “in its particular setting”). Thus, any attempt on our part to strip statements from
their context invariably would lead to confusion and misinterpretation when applying the
Lemon test.
Manifestly, if courts were to find an Establishment Clause violation every time
that a student or parent thought that a single statement by a teacher either advanced or
disapproved of a religion, instruction in our public schools “would be reduced to the
lowest common denominator.” Brown v. Woodland Joint Unified Sch. Dist., 27 F.3d
1373, 1379 (9th Cir. 1994). Such a focus on isolated statements effectively would
transform each student, parent, and by extension, the courts, into de facto “curriculum
review committee[s],” monitoring every sentence for a constitutional violation. Id.School authorities, not the courts, are charged with the responsibility of deciding
what speech is appropriate in the classroom. See Hazelwood Sch. Dist. v. Kuhlmeier, 484
U.S. 260, 267 (1988) (citing Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 683
(1986)). Although schools are not “immune from the sweep of the First Amendment,”
academic freedom is itself a concern of that amendment. Healy v. James, 408 U.S. 169,
180-81 (1972); see also Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 226
(1985); Keyishian v. Bd. of Regents of Univ. of the State of N.Y., 385 U.S. 589, 603
(1967). Such academic freedom would not long survive in an environment in which
courts micromanage school curricula and parse singular statements made by teachers.
Because the challenged materials were presented as part of Wood’s world history
curriculum, it is in that context that we examine them.
2.
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The first prong of the Lemon test asks whether the government’s conduct has an
“adequate secular object.” McCreary County, 545 U.S. at 865. This directive requires an
“inquiry into the subjective intentions of the government.” Mellen, 327 F.3d at 372
(emphasis added). This part of the Lemon test imposes a “fairly low hurdle,” requiring
the government to show that it had a “plausible secular purpose” for its action. Glassman
v. Arlington County, 628 F.3d 140, 146 (4th Cir. 2010). Notably, the government’s
purpose need not be “exclusively secular.” Brown v. Gilmore, 258 F.3d 265, 276 (4th
Cir. 2001) (citations omitted). Rather, it is only “[w]hen the government acts with the
ostensible and predominant purpose of advancing religion” that it violates the
Establishment Clause’s “touchstone” principle of religious neutrality. McCreary County,
545 U.S. at 860 (emphasis added). So long as the proffered secular purpose is “genuine,
not a sham, and not merely secondary to a religious objective,” that purpose will satisfy
Lemon’s first prong. Id. at 864; see Lambeth, 407 F.3d at 270 (“A legitimate secular
purpose is . . . sufficient to pass muster under the first prong of the Lemon test, unless the
alleged secular purpose is in fact pretextual.”).
The Supreme Court has recognized the secular value of studying religion on a
comparative basis. See, e.g., Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 255
(1963) (“[I]t might well be said that one’s education is not complete without a study of
comparative religion or the history of religion and its relationship to the advancement of
civilization.”). In this case, the comparative faith statement was part of an academic unit
in which students studied Middle Eastern empires and the role of Islam. The unit did not
focus exclusively on Islam’s core principles, but explored “among other things, formation
10
of Middle Eastern empires including the basic concepts of the Islamic faith and how it
along with politics, culture, economics, and geography contributed to the development of
those empires.” Nothing in the record indicates that the comparative faith statement was
made with a subjective purpose of advancing Islam over Christianity, or for any other
predominately religious purpose. Nor does the record show that the proffered secular
purpose of teaching about Muslim empires in the context of world history was pretextual.
See Lambeth, 407 F.3d at 270. Thus, on its face, the comparative faith statement was
introduced for a genuine secular purpose.
Similarly, the shahada assignment was a tool designed to assess the students’
understanding of the lesson on Islam. In total, the worksheet included 17 questions with
27 blank entries to be completed by the students on the history of Islam, “beliefs and
practices” of Muslims, and links between Islam, Judaism, and Christianity. The students
were not required to memorize the shahada, to recite it, or even to write the complete
statement of faith. Instead, the worksheet included a variety of factual information
related to Islam and merely asked the students to demonstrate their understanding of the
material by completing the partial sentences. This is precisely the sort of academic
exercise that the Supreme Court has indicated would not run afoul of the Establishment
Clause. See Schempp, 374 U.S. at 225 (“Nothing we have said here indicates that such
study . . . of religion, when presented objectively as part of a secular program of
education, may not be effected consistently with the First Amendment.” (emphasis
added)). Because the school had a predominately secular purpose in teaching world
11
history, we conclude that both the comparative faith statement and the shahada
assignment satisfy the first prong of Lemon.
3.
To meet the second prong of Lemon, the challenged government action “must
have a primary effect that neither advances nor inhibits religion.” Moss, 683 F.3d at 608.
This requirement sets an objective standard, which “measure[s] whether the principal
effect of government action is to suggest government preference for a particular religious
view or for religion in general.” Mellen, 327 F.3d at 374 (citation omitted). We have
“refine[d]” this analysis by incorporating the Supreme Court’s “endorsement test,” which
asks whether a reasonable, informed observer would conclude that government, by its
action, has endorsed a particular religion or religion generally. See id.; see also County of
Allegheny, 492 U.S. at 592-94 (adopting the endorsement test in the Establishment
Clause context). Thus, in this Circuit, the primary effect prong asks whether,
“irrespective of government’s actual purpose,” a reasonable, informed observer would
understand that “the practice under review in fact conveys a message of endorsement or
disapproval” of a religion. Mellen, 327 F.3d at 374 (citation omitted). We presume that a
“reasonable observer in the endorsement inquiry” is “aware of the history and context of
the . . . forum in which the religious speech takes place.” Good News Club v. Milford
Cent. Sch., 533 U.S. 98, 119 (2001) (quoting Capitol Square Review & Advisory Bd. v.
Pinette, 515 U.S. 753, 779-80 (1995) (O’Connor, J., concurring in part and concurring in
the judgment)).
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The use of both the comparative faith statement and the shahada assignment in
Wood’s world history class involved no more than having the class read, discuss, and
think about Islam. The comparative faith statement appeared on a slide under the
heading “Peaceful Islam v. Radical Fundamental Islam.” The slide itself did not
advocate any belief system but instead focused on the development of Islamic
fundamentalism as a political force. And the shahada assignment appeared on the
student worksheet under the heading “Beliefs and Practices: The Five Pillars.” Thus, the
assignment asked the students to identify the tenets of Islam, but did not suggest that a
student should adopt those beliefs as her own.
This is not a case in which students were being asked to participate in a daily
religious exercise, see Lee v. Weisman, 505 U.S. 577, 598-99 (1992) (holding that
requiring students to stand for graduation prayer constituted compelled participation in
religious ritual); Engel v. Vitale, 370 U.S. 421, 424-25 (1962) (striking down state-
sponsored prayer due to the inherently religious nature of prayer), or a case in which
Islamic beliefs were posted on a classroom wall without explanation, see Stone v.
Graham, 449 U.S. 39, 41-42 (1980) (holding that posting the Ten Commandments on a
public school classroom wall violated the Establishment Clause). Rather, the challenged
materials were “integrated into the school curriculum” and were directly relevant to the
secular lessons being taught. Stone, 449 U.S. at 41-42. These types of educational
13
materials, which identify the views of a particular religion, 4 do not amount to an
endorsement of religion. See id.; see also Parker v. Hurley, 514 F.3d 87, 106 (1st Cir.
2008) (“Public schools are not obliged to shield individual students from ideas which
potentially are religiously offensive, particularly when the school imposes no requirement
that the student agree with or affirm those ideas.”). A reasonable observer, aware of the
world history curriculum being taught, would not view the challenged materials as
communicating a message of endorsement.
Additionally, we note that the challenged materials constituted only a very small
part of the school’s world history curriculum. As we have explained, we must view the
effect of the challenged materials within the context in which they were used. See
Lambeth, 407 F.3d at 271 (examining the primary effect of a religious display “in its
particular setting”). Wood does not argue that the world history class itself advanced any
religion. Indeed, she readily admits that it is permissible to teach “how the Islamic faith
contributed to the development of politics, culture, and geography.” As a matter of
common sense, an objective observer would not perceive a singular statement such as the
4
Although scholars could debate endlessly the content of the comparative faith
statement and its suitability for use in an educational context, the “primary effect” prong
of the Lemon test “must be assessed objectively.” Mellen, 327 F.3d at 374. Thus,
Wood’s argument that the comparative faith statement is a “subjective, biased statement”
about Islam is outside the bounds of our consideration whether use of the statement was
constitutional. For the same reason, Wood’s contention that she viewed the comparative
faith statement as offensive, and that some school officials thought the statement was
inappropriate, is unavailing. See Lee, 505 U.S. at 597 (“We do not hold that every state
action implicating religion is invalid if one or a few citizens find it offensive.”); Brown,
27 F.3d at 1383 (“[A] child’s subjective perception that a state action disapproves of or is
hostile toward his or her religion is not, by itself, sufficient to establish an Establishment
Clause violation.”).
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comparative faith statement, or a lone question about a religion’s core principle on a fill-
in-the-blank assignment, as an endorsement or disapproval of religion. Therefore, we
conclude that the primary effect of both the comparative faith statement and the shahada
assignment was to teach comparative religion, not to endorse any religious belief.
Accordingly, the use of the challenged materials satisfies Lemon’s second prong.
4.
The final prong of the Lemon test asks whether the government’s action created
“an excessive entanglement between government and religion,” Lambeth, 407 F.3d at
272-73 (internal quotation marks omitted), which “is a question of kind and degree,”
Lynch, 465 U.S. at 684. Excessive entanglement “typically” involves “the government’s
‘invasive monitoring’ of certain activities in order to prevent religious speech,” or the
funding of religious schools or instruction. Buxton, 862 F.3d at 433; Comm. for Pub. Ed.
& Religious Liberty v. Nyquist, 413 U.S. 756, 770 (1973) (“Primary among those evils
[targeted by the Establishment Clause] have been sponsorship, financial support, and
active involvement of the sovereign in religious activity.” (citation omitted)). Excessive
entanglement may also be shown when the government’s entanglement has “the effect of
advancing or inhibiting religion.” See Agostini v. Felton, 521 U.S. 203, 232-33 (1997).
We need not dwell long on the entanglement prong. As already discussed, neither
the comparative faith statement nor the shahada assignment advanced or inhibited any
religion. And there is no evidence in the record that these materials were obtained from a
religious institution or benefited any such institution. Finally, there is no evidence that
use of the challenged materials resulted in “invasive monitoring” of activities to prevent
15
or advance religious speech. See, e.g., Bd. of Educ. of Westside Cmty. Sch. v. Mergens,
496 U.S. 226, 253 (1990). Under the world history curriculum, it appears that lessons on
the Muslim world constituted, at most, five days of a year-long course. Thus, we
conclude that neither the comparative faith statement nor the shahada assignment
resulted in an excessive entanglement with religion. Because the challenged materials
satisfy all three prongs of the Lemon test, we hold that the district court properly granted
summary judgment to the defendants on Wood’s Establishment Clause claim. 5
B.
We next consider Wood’s Free Speech Clause challenge. Wood argues that the
defendants violated her free speech rights by requiring her to complete in writing two
missing words of a portion of the shahada, namely, that “[t]here is no god but Allah and
Muhammad is the messenger of Allah.” In her view, “the curriculum implemented and
supervised by [d]efendants compelled [Wood] to confess by written word and deed her
faith in Allah.” We disagree with Wood’s position.
Generally, when a governmental entity requires a person “to utter or distribute
speech bearing a particular message,” we subject that requirement to “rigorous scrutiny.”
Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of Balt., 879
5
In Wood’s amended complaint, she objects to other portions of the world history
curriculum, such as the fact that that Wood was “instructed from the text of the Qur’an,”
that Wood was “instructed . . . that [r]ighteous women are . . . obedient” to men, and that
the course devoted only a single day to the study of Christianity while multiple days were
spent studying Islam. Wood waived these arguments by failing to raise them in her
opening brief. Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir. 2017) (“A
party waives an argument by failing to present it in its opening brief.”).
16
F.3d 101, 107 (4th Cir. 2018) (citation omitted). In the public school setting, students do
not “shed their constitutional rights to freedom of speech or expression at the
schoolhouse gate,” but retain their First Amendment rights “applied in light of the special
characteristics of the school environment.” Tinker v. Des Moines Indep. Cmty. Sch. Dist.,
393 U.S. 503, 506 (1969). However, the Supreme Court has emphasized that students’
First Amendment rights in public schools “are not automatically coextensive with the
rights of adults in other settings.” Kuhlmeier, 484 U.S. at 266.
In considering the right against compelled speech in the public school context, the
Third Circuit has explained:
First Amendment jurisprudence recognizes that the educational process
itself may sometimes require a state actor to force a student to speak when
the student would rather refrain. A student may also be forced to speak or
write on a particular topic even though the student might prefer a different
topic. And while a public educational institution may not demand that a
student profess beliefs or views with which the student does not agree, a
school may in some circumstances require a student to state the arguments
that could be made in support of such beliefs or views.
C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 187 (3d Cir. 2005). We agree with the
Third Circuit’s reasoning. Although a student’s right against compelled speech in a
public school may be asserted under various circumstances, that right has limited
application in a classroom setting in which a student is asked to study and discuss
materials with which she disagrees.
In the present case, the record is clear that the shahada assignment did not require
Wood to profess or accept the tenets of Islam. The students were not asked to recite the
shahada, nor were they required to engage in any devotional practice related to Islam.
17
Cf. W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 631-32 (1943) (distinguishing between
compelling students to declare a belief through mandatory recital of the pledge of
allegiance, and “merely . . . acquaint[ing students] with the flag salute so that they may be
informed as to what it is or even what it means”). Instead, the shahada assignment
required Wood to write only two words of the shahada as an academic exercise to
demonstrate her understanding of the world history curriculum. On these facts, we
conclude that Wood’s First Amendment right against compelled speech was not violated.
III.
For these reasons, we affirm the district court’s judgment.
AFFIRMED
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