Shawn E. Abrell, WSBA No. 41054, Pro Hac Vice
3405 NW 31st Circle, Camas, Washington 98607
Tel.: 503.512.7712; Fax: 503.222.0693
E-Mail: shawn.e.abrell@gmail.com
Lead Counsel for Plaintiffs
Tyl W. Bakker, OSB No. 90200
621 SW Alder, Suite 621, Portland, Oregon 97205
Tel.: 503.244.4157; Fax: 503.220.1913
E-Mail: twbpc@pcez.com
Local Counsel for Plaintiffs
United States District Court
District of Oregon
Portland Division
Alexandra Helene Morrison, by and through
her Guardian ad litem and father,
David Mark Morrison, and
David Mark Morrison, individually,
v.
Portland Public Schools,
Defendant.
Civil Action No.
Memorandum in Support of
Preliminary Injunction Motion
Alexandra Helen Morrison and David Mark Morrison offer the following Memorandum
in support of their Motion for Preliminary Injunction as their fundamental rights are violated by
Portland Public Schools’ policy of educating via the internet by use of WI-FI.
Page 1 – Memorandum in Support of Preliminary Injunction Motion
Table of Contents
Introduction…………………………………………………………………………………...... 3
Facts………………………………………………….……….…………….………………….. 3
Argument………………………………………………………………………………………... 3
I. David and Alexandra Morrison are likely to succeed on the merits …..………… 3
(a) Alexandra Morrison has a fundamental right to life, liberty, and health .. 4
(b) Alexandra Morrison has a fundamental right to procreation ……...……. 4
(c) David Morrison has a fundamental right to the care and control of his
child’s health and continued well-being ......…………..………..……...... 4
(d) Portland Public Schools has a higher duty than even parents. …..…….... 6
(e) Portland Public policy of using WI-FI takes, limits, and burdens
Alexandra and David Morrison’s fundamental civil rights and liberties ... 7
i. Electromagnetic radiation …………………………………….. 7
ii. Children are electrical beings………………………..…………. 8
iii. Children are more vulnerable than adults……………………… 8
iv. WI-FI causes adverse health effects………………………….. 11
v. Children are captive…...……………………………………… 18
vi. WI-FI is an experiment ………………………………………. 19
vii. The mere existence of a well-known controversy violates
David Morrison’s fundamental right to the care and control
of his child’s health and continued well-being……………….. 21
viii. Claims are not preempted …………………………………… 22
(f) Application of strict scrutiny: Portland Public Schools’ policy is not
narrowly tailored to a compelling interest ..……………………….…… 26
(g) Scope of injection .…………………………………………………....... 28
II. Alexandra and David Morrison will suffer irreparable injury if the
injunction is not granted …………..……………………………………………. 28
III. Equities tip in favor of granting the injunction ..……………..………...………. 28
IV. Public interest is furthered by the injunction ..…………....……………………. 29
Conclusion …………………………………………………………………………………...… 30
Page 2 – Memorandum in Support of Preliminary Injunction Motion
Introduction
This case will establish that a child’s fundamental rights and liberties to a life and health
free from ill health and disease, and a parent’s fundamental rights and liberties to the
care and control of his child’s health and continuing well-being are violated by
Portland Public Schools’ policy of educating via the internet by way of WI-FI and must be
permanently enjoined as it is not narrowly tailored to a compelling governmental interest.
Facts
After deciding against installing any cell mast technology on its buildings
(see Correspondence, Patrick Wolfe, Portland Public Schools’ Health and Safety Manager,
July 15, 2010, Abrell Dec., Ex. B), Portland Public Schools nevertheless chose to install nonionizing
pulsed radiation WI-FI routers inside their schools, ‘when a classroom of computers
could exceed the power from an ordinary mobile phone transmitter.’ Trower Dec. ¶ 61.
Argument
The proper legal standard for preliminary injunctive relief requires a party to demonstrate
that he is likely to succeed on the merits, that he is likely to suffer irreparable
harm in the absence of preliminary relief, that the balance of equities tips in his
favor, and that an injunction is in the public interest. Winter v.
Natural Resources Defense Council, Inc., 129 S Ct 365, 172 L Ed 249 (2008).
As seen next, Plaintiffs meet these requirements, so preliminary injunctive relief should be
granted.
I. Likelihood of success on the merits.
Plaintiffs are likely to succeed on the merits because Portland Public Schools’ policy of
educating via the internet by way of WI-FI limits, burdens, and takes Alexandra and
David Morrison’s Fundamental Rights and is not narrowly tailored to a compelling interest.
Further, the preamble to The Bill of Rights provides:
in order to prevent misconstruction or abuse of its powers, that further declaratory
and restrictive clauses should be added: and as extending the ground of public
confidence in the Government, will best ensure the beneficent ends of its
institution. The Preamble to The Bill of Rights: A Transcription,
The U.S. National Archives & Records Administration, www.archives.gov (2010).
Page 3 – Memorandum in Support of Preliminary Injunction Motion
Portland Public Schools’ policy fails to ensure the public confidence nor the beneficent ends of
school children, because it fails to protect them from adverse health effects and because it
interferes with parents’ rights to the care and control of their children’s health and continued
well-being.
(a) Alexandra Morrison has a fundamental right to life, liberty, and health.
In 1776, the United States Declaration of Independence declared that all men are
endowed with certain inalienable rights, and that ‘among these are life, liberty, and the pursuit of
happiness.’
The Fourteenth Amendment provides that no State ‘deprive any person of life, liberty, or
property, without due process of law.’
Children have the fundamental right to be free from communicable disease, ill health, and
death. People v. Pierson, 176 NY 201, 68 NE 243 (1903).
(b) Alexandra Morrison has a fundamental right to procreation.
The Supreme Court has legally recognized some fundamental rights not specifically
enumerated in the Constitution, including the right to procreation. The Supreme Court
established a broader view of privacy in Eisenstaedt v. Baird, 405 US 438, 454 (1972), finding
that the right to privacy belongs to the individual person, and prevents government interference
with ‘matters so fundamentally affecting a person as the decision whether to bear or beget a
child.’
(c) David Morrison has a fundamental right to the care and control of his child’s
health and continued well-being.
Parental interest in the health and continued well-being of a child is a
Fourteenth Amendment constitutionally protected right.
In 1923, the Supreme Court of the United States first recognized family autonomy and the
right of parents to control the upbringing of their children. The Court explained,
Page 4 – Memorandum in Support of Preliminary Injunction Motion
privileges long recognized at common law are essential to the orderly pursuit of
happiness by free men. [And] * * * the established doctrine is that this liberty
may not be interfered with, under the guise of protecting the public interest, [nor]
by legislative action which is arbitrary or without reasonable relation to some
purpose within the competency of the State to effect. [Where] determination by
the Legislature of what constitutes proper exercise of * * * Power is not final or
conclusive but is subject to supervision by the courts. (Italics added)
Meyer v. Nebraska, 262 US 390, 25 (1923).
In 1925, the Supreme Court in Pierce v. Society of the Sisters, et al., 268 US 519, 10
(1925), an Oregon case, stated that ‘a child is no mere creature of the State’ and that the parent
has the high duty to care for and nurture his child that cannot be interfered with.
In 1944, the Supreme Court recognized the custody, care, and nurture of the child reside
first in the parents and that this was a private realm of family life the State cannot enter:
it is cardinal with us that the custody, care and nurture of the child reside first in
the parents, whose primary function and freedom include preparation for
obligations the State can neither supply nor hinder. And it is in recognition of this
that these decisions have respected the private realm of family life which the State
cannot enter. (Italics added) Prince v. Massachusetts, 321 US 158, 15 (1944).
‘[T]he history and culture of Western civilization reflect a strong tradition of parental
concern for the nurture and upbringing of their children. This primary role of the parents in the
upbringing of their children is now established beyond debate as an enduring American
tradition.’ (Italics added). Wisconsin v. Yoder, 406 US 20, 46 (1972).
In 1983, ‘the Court has found that the relationship of love and duty in recognized family
unit is an interest in liberty entitled to Constitutional protection * * *.’
Lehr v. Robertson, 463 US 248 (1983). In 2000, the Supreme Court held:
In light of this extensive precedent, it cannot now be doubted that the Due Process
Clause of the Fourteenth Amendment protects the fundamental right of parents to
make decisions concerning the care, custody, and control of their children.
(Italics added) Troxel v. Granvill, 530 US 57, 66 (2000).
Page 5 – Memorandum in Support of Preliminary Injunction Motion
Further in Troxel is established the precedent that a parent’s decisions are presumed to be
in the best interest of the child as ‘natural bonds of affection lead parents to act in the best
interests of their children.’ Troxel v. Granville, 530 US 57, 87 (2000), Parham v. J.R.,
442 US 584, 602 (1979). Thus, shifting the burden to Portland Public Schools to prove it is safe,
which it cannot do.
Thus, we return to the originating case, Meyer, where interference with parental rights
with respect to the health and continued well-being of their child is a constitutionally protected
right within the upbringing of a child.
(d) Portland Public Schools has a higher duty than even parents.
Notwithstanding the high duty of parents to their children’s health and continued
well-being, Portland Public Schools has an even higher duty than parents while standing in the
stead of the parents via compulsory education. This includes providing an environment to learn,
play, develop and thrive that does not ‘expos * * * the child to * * * ill health or death.’
People v. Pierson, 176 NY 201, 68 NE 243 (1903).
Prince v. Massachusetts, is an opposite case of the ability of the State to infringe, even
revoke, rights of parental interest when the health or freedom of the child is at issue.
Further embedded in Prince is the delineation that even in pursuit of the parent’s high right to
practice freedom of religion, the right of a child is above the exercise of religion. This time the
child is protected by the State, not the parent, when that protection is from exposure to
communicable disease, or ill health. Prince v. Massachusetts, 321 US 158, Pp. 16 (1944),
quoting People v. Pierson, 176 NY 201, 68 NE 243 (1903).
The high duty to children’s health extends through to the State and its bodies, including
Portland Public Schools, broadly creating a doctrine that activities generally accepted as safe for
adults are not synonymous with those of children:
Page 6 – Memorandum in Support of Preliminary Injunction Motion
The State’s authority over children’s activities is broader than other like actions
of adults * * * a democratic society rests, for its continuance, upon the healthy,
well rounded growth of young people into full maturity as citizens, with all that
implies. It may secure this against impeding restraints and dangers within a broad
range of selection. (Italics added) Prince v. Massachusetts, 321 US 158, at 16
(1944).
Portland Public Schools has the high duty to protect its schoolchildren from genotoxins
(see Carpenter ¶ 8; Trower ¶ 67), carcinogens, and neurotoxins (see Carpenter Dec. ¶ 12) such as
WI-FI.
(e) Portland Public School’s policy takes, limits, and burdens Alexandra and
David Morrison’s fundamental rights.
i. Electro-magnetic radiation.
At one end of the electromagnetic spectrum you have the very short waves, namely
gamma rays and x-rays, and at the other end of the spectrum you have the very long ways,
namely radio, TV and waves from overhead power cables. All of these waves have the same
properties, in that they all behave the same. They can all be reflected, refracted, absorbed by the
human body, and they all travel at the same speed, which is the speed of light.
The electromagnetic spectrum is ordered so that at the short wave end you have the gamma rays,
x-rays, ultra-violet, visible light, infra red, microwaves, radar, TV and radio in that order.
Trower Dec. ¶ 20 (para.).
The ultra-violet and above are known as ionizing waves and there is no argument as to
the damage they can cause when entering the body. Below ultraviolet is said to be non-ionizing
and this is where arguments occur between scientists as to whether damage can occur inside the
human body through exposure to these waves. The microwaves used in Portland Public Schools’
WI-FI system are in the non-ionizing section of the electromagnetic spectrum.
Trower Dec. ¶ 20 (para.).
The digital wireless signals in used in WI-FI are pulsed, ultra high frequency signals,
emitted in bursts, at regular intervals, in very rapid succession. Imposed on these pulsed, ultra high
frequency microwaves are extremely low frequency (ELF) modulations of the radio frequency (RF)
Page 7 – Memorandum in Support of Preliminary Injunction Motion
carrier waves. Carrier waves transport data and are also referred to as information carrying radio
waves (ICRW). This man-made and very complex radio frequency electromagnetic radiation
product cannot be compared to the naturally occurring and biologically compatible radiation of our
environment where electromagnetic frequencies (EMF) are billions of times higher than EMF
levels from which all life evolved. Bennett Dec. ¶ 15 (para.); see also H.E.S.E., Electromagnetic
fields from non-ionizing electromagnetic radiation: discussion, http://www.hese-project.org/heseuk/
en/niemr/index.php (‘Electromagnetic fields (EMF) from man-made NIEMR [non-ionizing
electromagnetic radiation] are phenomenally in excess of that in the natural environment; it may be
called ‘low level’ but it is perhaps 1013 higher than nature.’).
ii. Children are electrical beings.
Children, teachers, and staff are very precise, as well as intricate, electrical beings that
operate at 7.8 Hz and 25 to 100 mV. Bennett Dec. ¶ 9(c). Portland Public Schools WI-FI
installation, which is a 2.5 GHz to 5 GHz frequency or between 2.4 and 5.8 billion Hz.
See, Bennett Dec. ¶ 10; Trower Dec. ¶ 14.
Children at the Mount Tabor Middle School are subject to multiple WI-FI transmitters and
rooms full of students transmitting numerous laptop or other wireless signals.
See Mount Tabor Middle School WI-FI Floor Plan, Complaint, Ex. A; Bennett Dec. ¶ 11;
Trower ¶ 78. Each child has different DNA, hydration, toxicity, nutrition, lifestyle, etc., with the
point being every one of them is a different electrical device in the WI-FI application.
Bennett Dec. ¶ 12. WI-FI is interacting with each of them differently and as it goes through
walls, it is going through these children, as well as teachers and staff. Id.
EMFs will interact differently with all material depending on that material's emissivity.
Emissivity is a materials ability to absorb or emit wavelengths of radiation. The more absorbent
the material, the higher the emissivity. Reflective materials will reflect the EMF radiation and it
may hit absorbent material with the reflected angle. The children, and other absorbent material
will be interacting with the frequencies. The EMFs are ultimately absorbed by children’s body
tissue, which is one of several substances that absorbs the radiation. Bennett Dec. ¶ 12. (para).
Page 8 – Memorandum in Support of Preliminary Injunction Motion
iii. Children are more vulnerable than adults.
Children are not small adults. Trower Dec. ¶ 64. It is commonly established that
pregnant women and children are afforded special regard with respect to their special sensitivities
to unknown actors/agents upon their health. Title 45, Public Welfare, Subtitle A,
Department of Health and Human Resources, Part 46, Protection of Human Subjects.
Children, by Interior Department definition, are not considered part of the general population and
are routinely afforded special consideration because of their unique health vulnerabilities
(i.e., rapidly developing bodies). Title 45, part 46, Subpart D, Additional Protections for
Children Involved As Subjects for Research.
The Presidential Cancer Panel found that children ‘are at special risk due to their smaller
body mass and rapid physical development, both of which magnify their vulnerability to known
carcinogens, including radiation.’ Carpenter Dec. ¶ 15.
Children are more vulnerable to RF fields because of the susceptibility of their developing
nervous systems. Carpenter Dec. ¶ 15; see also Trower Dec. ¶ 64. Growth and development of the
central nervous system is still occurring well into the teenage years so that neurological changes
may be of great importance to normal development, cognition, learning, and behavior.
Carpenter Dec. ¶ 17. Likewise, a child’s immune system, which fights off damage, takes 18 years
to develop. Trower Dec. ¶ 64.
Children are more vulnerable to microwaves because they do not have our immune
systems, they are not developed; their skulls are thin and their bones are soft
allowing the microwaves to penetrate very easily; and, they act like antennas and absorb more
radiation than adults because they are smaller, they are nearer the wavelength.
See Trower Dec. ¶ 63. The following shows how the thickness of a child’s skull allows
electromagnectic radiation (from a cell phone) to penetrate far deeper than adults.
Page 9 – Memorandum in Support of Preliminary Injunction Motion
Estimation on the absorption of electromagnetic radiation from a cell phone based
on age (Frequency GSM 900 MHz) (Color scale shows the Specific Absorption
Rate in W/kg). Children’s heads and brains are not miniature adult heads.
Their skulls are thinner, the proportion of water is higher, myelin (thought to
be like wire insulation for neurons) is still developing, etc. As a result, * * *
radiation from a cell phone or PDA penetrates a far larger proportion of the
brain. Gandhi et al., IEEE Transactions on Microwave Theory and Techniques
(1996). Quoted from Morgan et al., Cellphones and Brain Tumors –
15 Reasons for Concern, at 25 (2009).
The problem with young girls is that microwaves can damage the genetic structure in their
ovaries. Girls are born with all of the eggs they need in their ovaries at birth. Because microwaves
are genotoxic (some experiments that can be linked to children found low level mobile telephony
radiation disrupts the bio-chemistry of follicle cells in a mammalian egg chamber), there is a
possibility that the microwaves can affect the genetic structure within the eggs. The problem here
is that the mitochondrial DNA, the genes inside the ovaries, is irreparable. So if you have a little
girl who damages, through this mechanism, the genetic structure in one of her eggs and she has a
daughter, that daughter will carry that genetic problem, because it is irreparable. And her daughter
will carry that genetic problem, and every female forever, in that line, will carry that problem in
perpetuity, because it is irreparable. Trower ¶ 67 (para.).
The exposure of children to RF has not been studied extensively, although one study from
Sweden reports that regular use of a cell phone by children increases risk of development of brain
cancer by a factor five times greater than that observed in adults. Carpenter Dec. ¶ 16.
Page 10 – Memorandum in Support of Preliminary Injunction Motion
i. WI-FI causes adverse health effects.
Like second-hand smoke, EMF is a complex mixture, where different frequencies,
intensities, durations of exposure(s), modulation, waveform and other factors are known to
produce variable effects. Carpenter Dec. ¶ 12. Many years of scientific study has produced
substantial evidence that EMF may be considered both carcinogenic and neurotoxic. Id.
Guterman J., Wrapped Microstrip Antennas for Laptops, IEEE Antennas and
Propagation Magazine, Vol 51, No 4, at 35, August 2009; available at
http://ieeexplore.ieee.org/xpl/freeabs_all.jsp?arnumber=5338680 (‘the entire
laptop’s structure participates in the radiation mechanism, and the human being
belongs to the near-field zone of such a defined antenna-plus-laptop radiator. * * *
In all the analyzed scenarios * * * , the human tissue partially reflected and
partially absorbed the incident electromagnetic waves.’)
As seen in the foregoing, a laptop transmitting radiofrequencies causes a heating effect on
the user. As well, a variety of bioeffects and adverse health effects occur at energy levels that do
not cause any measurable rise in local temperature. Carpenter Dec. ¶ 7; Trower Dec. ¶ 85.
Page 11 – Memorandum in Support of Preliminary Injunction Motion
Adverse health effects from this long-term low level electromagnetic radiation include:
arrhythmia, heart attack, cell death, diseases of the blood, interference to bone marrow,
brain tumors, altered calcium level in cells, reduction in night-time melatonin, suppression of the
immune system, arthritis, rheumatism, skin problem, lymphatic diseases, vaginal discharge,
vascular system disease, tinnitus, leukemia, childhood cancer, sleep problems, mental problems
involving depression, irritability, memory loss, difficulty in concentrating, headache,
dizziness and fatigue, suicidal tendencies, miscarriage and infertility. Trower Dec. ¶ 21.
Other health endpoints that have been reported to be associated with ELF and/or RF
include childhood leukemia, adult brain tumors, childhood brain tumors, genotoxic effects
(DNA damage and micronucleation), neurological effects and neurodegenerative disease
(like ALS and Alzheimer's), immune system disregulation, allergic and inflammatory responses,
breast cancer in men and women, miscarriage and some cardiovascular effects.
Carpenter Dec. ¶ 8.
There is suggestive to strongly suggestive evidence that RF exposures may cause changes
in cell membrane function, cell communication, metabolism, activation of proto-oncogenes and
can trigger the production of stress proteins at exposure levels below current regulatory limits.
Carpenter Dec. ¶ 10. Resulting effects can include DNA breaks and chromosome aberrations,
cell death including death of brain neurons, increased free radical production, activation of the
endogenous opioid system, cell stress and premature aging, changes in brain function including
memory loss, retarded learning, performance impairment in children, headaches and fatigue,
sleep disorders, neurodegenerative conditions, changes in immune function (allergic and
inflammatory responses), reduction in melatonin secretion and cancers. Id.
The Seletun Panel (February, 2011), consisting of international scientists and experts,
including Lloyd Morgan, recommends wired internet access in schools, and
strongly recommends that schools do not install wireless internet connections that create
pervasive and prolonged EMF exposures for children. http://www.sagereports.com/smart-meterPage
12 – Memorandum in Support of Preliminary Injunction Motion
rf/docs/Fragopoulou_et_al_2010b.pdf. The Panel was led by Professor Olle Johansson, Ph.D.
(Associate Professor, The Experimental Dermatology Unit, Department of Neuroscience,
Karolinska Institute, Stockhom, Sweden) who submitted an open letter to Canada’s Greater
Victoria School District stating further explaining his concern that, ‘WI-FI routers can not be
regarded as safe in schools, but must be deemed highly hazardous and unsafe for the children as
well as for the staff.’ See http://www.heartmdinstitute.com/wireless-safety/why-get-wiredschools.
According to the Journal of the American Medical Association (JAMA 2011; 305(8);
808-813; available at http://jama.ama-assn.org/content/305/8/808), a United States Government
funded team of researchers led by the director of the National Institute of Drug Abuse,
Psychiatrist Nora D. Volkow, unsettled many people this year (February, 2011) when it reported
that using a cell phone could alter brain activity, and do so at non-thermal levels of microwave
radiation, levels which have long been argued by industry and regulatory bodies that they do not
have enough intensity to create biological effects. The study reported two important findings.
First, exposed radiation from a cell phone for 50 minutes increased significantly affected brain
function and metabolism of glucose, the brain’s main fuel. Second, a significant linear
correlation was observed between enhanced neural metabolic rate and the estimated rate of
radiofrequency energy absorption expected in brain regions. The results point to the conclusion
that cell phones [and similar devices such as WI-FI] are affecting brain function, and specific
effects may depend on the regions of the brain affected. See, Editorial by Henry Lai, Ph.D., and
Lennart Hardell, M.D., Ph.D., Id. Dr. Ronal B. Herberman, M.D., chair of the
Environmental Health Trust’s Board and renowned cancer biologist and physician, indicated that
‘even short-term exposure to nerve cells from cell phones can increase glucose in the brain.’
Press Release: Environmental Health Trust Experts Warn That Cell Phone Radiation Excites the
Page 13 – Memorandum in Support of Preliminary Injunction Motion
Brain of Healthy Adults, http://www.environmentalhealthtrust.org/content/press-release-environ
mental-health-trust-experts-warn-cell-phone-radiation-excites-brain-hea. Dr. Heberman further
noted, this results in adverse health effects because, ‘increased glucose also occurs with
infections and other inflammatory processes, and leads to the production of potentially damaging
reactive oxygen radicals that can alter the ways that cells and genes work.’
New research from China, by Duan Y, et al., Correlation between cellular phone use and
epithelial parotid gland malignancies, Int J Oral Maxofacial Surgery (2010),
doi:10.1016/j.ijom.2011.03.007, www.avaate.org/IMG/pdf/parotidas_cancer_estudio_chino.pdf,
showed a dose-response relationship between cell phone use and parotid gland tumors, and as
much as a 3,000 percent increased risk of parotid gland tumors with greater than 2.5 hours of cell
phone use per day. According to Lloyd Morgan, ‘The magnitude of the risk of parotid gland
tumors found in the Duan Y, et al. study on the risk of parotid gland cancer from cellphone use
were of the same magnitude as the risk of lung cancer from smoking.’ Morgan ¶ 11.
In April 2011, the Russian National Committee on Non-Ionizing Radiation Protection
(RNCNIRP) found:
Prevention childhood and juvenile diseases from exposure to EMF sources is of
paramount social and economic importance. * * * This problem has been already
recognized by the international community: in May 2011, the
World Health Organization (WHO) will be organizing the
Second International Conference: “Non-ionizing Radiation and Children’s Health”
dedicated to health protection of children exposed to EMF sources of various
frequency ranges. It is the WHO’s opinion that a “child is more vulnerable to
environmental factors.” * * *
Human brain and the nervous system tissues directly perceive EMF
and react irrespective of its intensity, and in certain cases it depends on EMF
modulation. * * * Analysis of scientific peer-reviewed national and international
publications as well as analysis of actual population exposure to EMF have allowed
the RNCNIRP to formulate 10 postulates. * * *
1. For the first time in human evolution, the brain is daily exposed to modulated
EMF at all developmental stages.
Page 14 – Memorandum in Support of Preliminary Injunction Motion
2. Absorption of EMF in a child’s brain is greater than in adult phone users; larger
brain areas including those responsible for intellectual development are exposed in a
child’s brain.
3. A child’s brain is undergoing development and its intellectual development are
exposed in a child’s brain. * * *
5. A child, due to its perception features, is unable to recognize the mobile phone as
the source of harmful EMF exposure. * * *
9. The Specific Absorption Rate (SAR) used for declaration of a mobile phone
safety, equal to 2 W/kg averaged over ten grams of brain tissue, in the opinion of the
RNCNIRP, cannot be viewed as sufficiently scientifically grounded in this case, and
its use does not guarantee protection of children and juvenile health.
10. Global changes in the electromagnetic background caused by the development
of modern mobile technologies, is an evolutionary factor requiring adaptation of
children and adolescents to this harmful environmental factor. * * *
It is reasonable to set limits on mobile telecommunications use by children and
adolescents, including ban on all types of advertisement of mobile
telecommunications for children (teenagers) and with their participation. * * *
Better safety criteria for children and teenagers are required in the nearest term.
Features of the developing organism should be taken into account, as well as the
significance of bioelectric process for human life and activities, present and future
conditions of EMF, prospects of technological and technical development should be
addressed in a document of legal status. (Italics added). RNCNIRP,
Electromagnetic Fields From Mobile Phones: Health Effects on Children and
Teenagers, (Italics added) April 2011, www.scribd.com/doc/55420788/Electromagn
etic-Fields-from-Mobile-Phones-Health-Effect-on-Children-and-Teenagers.
On May 6, 2011, the European Parliament was presented with a report recommending that
wireless networks and mobile phones be totally banned from schools on health grounds.
Council of Europe, The potential dangers of electromagnetic fields and their effect on the
environment, Parliamentary Assembly, Committee on the Environment, Agriculture and Local and
Regional Affairs, assembly.coe.int/documents/workingdocs/doc11/edoc12608.pdf. It highlights
that young people are most at risk. Id at 2. It requires that we take all reasonable measures to
reduce exposure to electromagnetic fields on ‘as low as reasonably achievable’ (ALARA) (Id.)
principles, especially to radio frequencies from mobile phones, and particularly the exposure to
Page 15 – Memorandum in Support of Preliminary Injunction Motion
children and young people who seem to be at most long-term risk from head tumors. It asked
education and health authorities to develop information campaigns ‘aimed at teachers, parents and
children to alert them to the specific risks of early, ill-considered and prolonged use of mobiles and
other devices emitting microwaves.’ Id at 3. Also, that Governments ‘ban all mobile phones,
DECT phones or WI-FI or WLAN systems from classrooms and schools, as advocated by some
regional authorities, medical associations and civil society organizations.’ (Italics added) Id.
On May 31, 2011, an international panel of World Health Organization experts found that
cell phones may cause cancer. A team of 31 scientists from 14 countries, including the United
States, made the decision after reviewing peer-reviewed studies on cell phone safety. World Health
Organization, IARC Classifies Radiofrequency Electromagnetic Fields as Possibly Carcinogenic to
Humans, International Agency for Research on Cancer, www.iarc.fr/en/mediacentre/
pr/2011/pdfs/pr208_E.pdf, May 31, 2011. The team found enough evidence to categorize
personal exposure as ‘possibly carcinogenic,’1 a finding that differs from the WHO’s earlier
conclusion that there were no cancer risks. The rating is the third highest, falling below
‘carcinogenic’ (including cigarettes), and ‘possibly carcinogenic.’ See, Agents Classified by the
IARC Monographs, Volumes 1-100, monographs.iarc.fr/ENG/Classification/ClassificationsAlphaO
rder.pdf. The agency now lists mobile phone use in the same ‘carcinogenic hazard’ category as
lead, the pesticide DDT, engine exhaust, creosote, and chloroform. Id. What they found was
evidence of increase in glioma, a rare but often deadly form of brain tumor, and acoustic neuroma
1‘Group 2B: The agent is possibly carcinogenic to humans.
This category is used for agents for which there is limited evidence of carcinogenicity in human
and less than sufficient evidence of carcinogenicity in experimental animals. It may also be used
when there is inadequate evidence of carcinogenicity in humans but there is sufficient evidence
of carcinoenicity in experimental animals. * * * An agent may be classified in this category
solely on the basis of strong evidence from mechanistic and other relevant data.’
World Health Organization, IARC Classifies Radiofrequency Electromagnetic Fields as Possibly
Carcinogenic to Humans, International Agency for Research on Cancer, at 5,
www.iarc.fr/en/media-centre/pr/2011/pdfs/pr208_E.pdf, May 31, 2011.
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brain cancer for mobile phone users. See World Health Organization, IARC Classifies
Radiofrequency Electromagnetic Fields as Possibly Carcinogenic to Humans, International Agency
for Research on Cancer, at 2, www.iarc.fr/en/media-centre/pr/2011/pdfs/pr208_E.pdf,
May 31, 2011.
On the same day of the IARC’s reclassification, the Supreme Court asked the United States
Solicitor General to file a brief on whether the Supreme Court should review the Third Circuit’s
dismissal of class action (holding it was preempted by federal law) brought by mobile device users
who accused several companies in the cellphone market of conspiring to market cellphones without
adequate warnings or headsets. www.supremecourt.gov/orders/courorders/053111zor.pdf; see also
Farina v. Nokia discussion below; see also, http://www.abajournal.com/news/articl/supreme court
seeks us vies on cell phone suit as who announces cancer dan/. At issue in the Supreme Court case
is whether the state law claims are pre-empted because they frustrate federal regulations. The
Supreme Court’s action speaks for itself given the Third Circuit’s dismissal.
The Physicians and Scientists for Responsible Application of Science and Technology
recently conducted research that concluded, ‘A considerable body of evidence proves,
beyond reasonable doubt, that microwave radiation from mobile phones and cordless phones
cause a significantly increased risk for brain tumours. * * * In addition, increasing evidence is
indicating that it causes disturbed brain function, damage to the genes and other disturbances.’
(Italics added) www.psrast.org/mobileng/mobilstarteng.htm, June 4, 2011.
In summary, many bioeffects and adverse health effects occur at far lower levels of
radiofrequency exposure where no measured heating occurs. Bennett Dec. ¶ 15;
Carpenter Dec. ¶ 21; Morgan Dec. ¶ 10; Trower Dec. ¶ 85. Because Portland Public Schools’ use
of WI-FI is causing and will continue to cause Alexandra Morrison (and other students, and school
faculty and staff) adverse health effects, it burdens, limits, and takes of her and her father’s
Page 17 – Memorandum in Support of Preliminary Injunction Motion
fundamental rights and should be discontinued immediately. See, Bennett Dec. ¶ 16,
Carpenter Dec. ¶ 22; Morgan Dec. ¶ 13; Trower Dec. ¶86.
ii. Children are captive.
When WI-FI is installed in a school, children and their parents have no choice but to allow
the school to expose themselves/their children, their exposure is involuntary.
See Carpenter Dec. ¶ 17-18.
Further in Meyer, is enumerated conditions under which is the power of the State to
‘compel’ attendance. This power, however, is limited by ‘matters * * * within the present
controversy’ (Meyers at 24) that are indicative of an ‘emergency’ with respect to protection of
a child’s health. Meyers at 25. Because there is, at a minimum, a well-known controversy,
a parent’s normative experience and knowledge is sufficient to suborn the State’s limitation,
which underpins a standard of actions that affect the child under its statutory authority that must
‘not [be] injurious to the health * * * of the ordinary child.’ (Italics added)
Meyer v. Nebraska, 262 US 390, 24-25 (1923).
Based upon are review of the Mount Tabor WI-FI Floor Plan, a given child is subject to
signals from multiple WI-FI transmitters and rooms full of students transmitting numerous laptop
or other wireless signals. Bennett Dec. ¶ 11; Carpenter Dec. ¶ 18. Under this compulsion, children
attending Portland Public Schools will be exposed to as much as 30-40 hours per week of constant
digitally encoded pulsed WI-FI signals from each wireless device in the child’s vicinity
(Carpenter Dec. ¶ 18), making the cumulative exposure over a child’s lifetime successively
higher. Trower Dec. ¶ 78. There is a major difference between an exposure that an individual
chooses to accept and one that is forced on an individual who can do nothing about it, especially a
child. Carpenter Dec. ¶ 18.
Because her exposure to WI-FI is compulsory and involuntary, Alexandra Morrison’s
fundamental right of liberty is violated.
Page 18 – Memorandum in Support of Preliminary Injunction Motion
iii. WI-FI is an experiment.
WI-FI is an experiment by the United States and the WHO in violation of domestic and
international law.
In 2008, the European Parliament wrote to its 27 countries urging them to ignore WHO
guidelines and set exposure limits at lower levels. Ries, European Parliament 2004-2009
Commission on the Environment. Public Health and Food Safety, 2008/2211/INI (translation by
www.nexyt-up.org), Editor: Frederique Ries (2008). In response, the WHO (which only began
studying microwave radiation effects on children in 2009) stated they will not comment on
microwave radiation effects on people until 2015, when it will be able to establish effects on
human beings. ‘They are watching people to see how many will become sick. We are being
experimented upon.’ Trower Dec. ¶ 74.
According to the underlying premise defined in the ten points of the Nuremberg Code,
WI-FI is an experiment. The Nuremberg Code provides:
The voluntary consent of the human subject is absolutely essential. This means that
the person involved should have legal capacity to give consent * * * before the
acceptance of an affirmative decision by the experimental subject there should be
made known to him the nature, duration, and purpose of the experiment; the method
and means by which it is to be conducted; all inconveniences and hazards
reasonable to be expected; and the effects upon his health or person which may
possibly come from his participation in the experiment.’ http//ohsr.od.nih.gov/guid
elines/Nuremberg.html (Reprinted from Trials of War Criminals Before the Nuremb
erg Military Tribunals Under Control Council, Law No10, Vol 2, at 181-182, ¶ 1,
Washington D.C.; U.S. Gov. Printing Office (1949).
No experiment should be conducted where there is a priori reason to believe that
death or disabling injury will occur; except, perhaps, in those experiments where the
experimental physicians also serve as subjects. Id. ¶ 2
During the course of the experiment the human subject should be at liberty to bring
the experiment to an end * * *. Id. ¶ 9.
Because Alexandra and David Morrison have not provided consent nor are they at liberty
to bring the experiment to an end, the WHO’s experiment is in violation of international law.
Page 19 – Memorandum in Support of Preliminary Injunction Motion
Although the legal force of the document is not established in American jurisprudence, the
Nuremberg Code and the related Declaration of Helsinki are the basis for the
Code of Federal Regulations Title 45 Part 46.
Institutions, both private and State, are subject to regulation of
Health and Human Services (HHS) under Federal Code of Regulations, Title 45,
The Public Welfare, Part 46, Subpart A, sec. 46.101(a). Regulatory compliance under HHS
defines ‘research on human subjects’ when undertaken by institutions, public or private, under
HHS, Code of Federal Regulations, Title 45, The Public Welfare, Part 46, Subpart A, sec 46.103.
Institutions, both private and Federal, are subject to definitions of actions deemed ‘research,’
under Title 45, The Public Welfare, Subpart A, 46.102(d), where,
Research means a systematic investigation, including * * * evaluation, designed
to * * * contribute to generalizable knowledge. Activities which meet this
definition constitute research for purposes of this policy, whether or not they are
conducted or supported under a program which is considered research for other
purposes.
The National Toxicology Program (NTP), headquartered at the
National Institute of Health (NIH), Health and Human Services (HHS), states the need for
evaluation and for the research contributive to generalizable knowledge about WI-FI, where
The weight of scientific evidence [is not conclusive]. The NTP is conducting
studies on RF radiation in three phases * * * [on young, old, pregnant female, and
non-human test subjects] * * * with anticipated completion in 2012 * * * and will
provide critical information regarding safety of exposure * * *.
NIH, NTP announcement at NIH.gov (2010).
‘Research’ undertaken without the intention of involving human subjects, but is later
proposed to involve human subjects in the research, provides that the human subject research
shall first be reviewed and approved by an Institutional Review Board under sec. 46.119.
Additional Protections for Children are required under statutory definitions in
HHS, Title 45, The Public Welfare, Subpart D, titled Additional Protections for Children,
46.401-4, providing definitions and protections for children involved in research on the topic not
Page 20 – Memorandum in Support of Preliminary Injunction Motion
to involve greater than minimal risk, and specifically, but not limited to 46.408(c), requiring
appropriate mechanisms for HHS regulatory compliance consistent with the mitigation of risk to
subjects and considering their age, maturity, condition, etc., requiring said research to be of
reasonable experiences inherent to actual and normative educative settings.
Because WI-FI is an ongoing experiment by the National Toxicology Program, and, upon
information and belief, such research on children has not been approved by the
Institutional Review Board nor has any consideration been given to the children’s age or any
attempt to mitigate the risks of this research, it is in violation of Title 45, The Public Welfare,
Part 46, Subparts A and D.
WI-FI is illegal and should be removed from Portland Public Schools.
iv. The mere existence of a well-known controversy violates
David Morrison’s fundamental right to the care and control of his
child’s health and continued well-being.
If the Court finds WI-FI is violative of Alexandra Morrison’s fundamental rights,
David Morrison’s fundamental rights are necessarily violated. However, even if the Court does
not find a violation of Alexandra Morrison’s rights, the mere existence of a well-known
controversy regarding WI-FI safety violates David Morrison’s fundamental parental right to the
care and control of his child’s health and continued well-being. Further, judicial notice
establishes that a well-known controversy exists that any well-informed person can know about,
In sum, if, as the GAO report says, the print and the broadcast media had given
widespread attention to the debate over safety, the manufacturers have included
with their products the FDA update discussing concerns over it, a book had been
published about cell phone safety, and lawsuits had been filed, a jury would be
compelled to find that a reasonably well-informed consumer * * * would have
learned about the [safety] debate. Sarah Dahlgren v. Audiovoxx Corporation,
et. al., trial court opinion at 62-63 (2010), www.sheller.com/uploads/dahlgren_dec
ision.pdf.
The well-known health controversy about the safety of cell phone use and the chronic
exposure to RF irradiation has increased dramatically since Dahlgren.
Page 21 – Memorandum in Support of Preliminary Injunction Motion
State and Federal actions taken under State authority under the compulsory laws requiring
a child to attend school presupposes a high duty (Pierce, 268 US 519, 10) to children’s health as
it extends through to the State and its bodies, including Portland Public Schools.
A parent, surrendering his child into the care and custody of the Portland Public School
system has the Constitutionally protected right to the presumption (Troxel, 530 US 57, 87) that
school policy has ‘best ensured’ (The Preamble to The Bill of Rights) his reasonable confidence
to the care and nurture of his child.
In the case of a controversy, the State’s duty has been made clear that the ultimate
decision must ‘not [be] injurious to the health * * * of the ordinary child.’ (Italics added)
Meyer v. Nebraska, 262 US 390, 24 & 25 (1923).
David Morrison’s has a fundamental right to choose, in light of a well-known
controversy, what environmental toxins his child is exposed to, within reason. Limiting his
daughter’s exposure to WI-FI, which is genotoxic (Carpenter Dec. ¶ 8; Trower Dec. ¶ 67),
carcinogenic and neurotoxic (Carpenter Dec. ¶ 12) experiment is well within reason.
i. Alexandra and David Morrison’s claims are not preempted.
WI-FI is a choice unlike cell towers, which the State must respond to requests to
‘place, construct, or modify.’ See 47 USC § 332(c)(7)(B)(iii). This means
Portland Public Schools is acting in a proprietary capacity rather than a regulatory capacity, and,
therefore, its decision whether or not to use WI-FI is not preempted.
It is anticipated that Portland Public Schools will argue that a decision to remove WI-FI is
preempted by the Telecommunications Act of 1996 (TCA) that provides:
No State or local government or instrumentality thereof may regulate the
placement, construction, and modification of personal wireless service facilities
on the basis of the environmental effects of radio frequency emissions to the
extent that such facilities comply with the Commission's
[Federal Communications Commission] regulations concerning such emissions.
47 USC § 332(c)(7)(B)(iv).
Page 22 – Memorandum in Support of Preliminary Injunction Motion
This issue was squarely addressed by the Second Circuit in Sprint Spectrum L.P. v. Mill,
283 F3d 404 (2002). In Sprint v. Mills, in September 1998, Sprint and the School District
entered into a five-year lease agreement permitting Sprint to locate a cell cite on the roof of the
High School in exchange for rent of $30,000.00 per year. One month later, Sprint and the
School District agreed to incorporate in the lease an addendum dealing with density of
radio emissions from the proposed antenna in terms of the number of microwaves (‘uw’)
per square centimeter. In 2000, Sprint demanded to update the equipment on the transmitter as
allowed by contract, because technological advances had made Sprint’s originally planned
equipment obsolete. With the new technology, Sprint could not operate at the low
radiofrequency emissions levels outlined in the addendum. Although Sprint guaranteed the
School District that the new antenna would operate at levels below the maxima set by
federal safety standards, the School District insisted that it would not allow construction unless
Sprint operated at or below the levels set forth in the addendum, which were 13,000 times below
the federal maxima. After applying a two-part test2 (from Cardinal Towing & Auto Repair, Inc.
v. City of Bedford, 180 F3d 686, 693 (5th Cir 1999)) to determine, under Boston Harbor [507 US
218, 113 S Ct 1190, 122 L Ed 2d 565 (1993)], the Second Circuit squarely evaluated preemption
under the TCA. Notwithstanding the district court’s findings in heavy favor of preemption, the
Second Circuit noted, in its point-by-point rebuttal, ‘we see nothing in the TCA to suggest that
Congress meant to preempt a governmental entity's conduct that does not amount to regulation;
and the structure and language of the TCA suggest precisely the contrary intent.’
2 [I]in order to determine, under Boston Harbor, whether ‘a class of government interactions with the
market [is] so narrowly focused, and so in keeping with the ordinary behavior of private parties, that a
regulatory impulse can be safely ruled out,’ a court must consider (1) whether ‘the challenged action
essentially reflect[s] the entity's own interest in its efficient procurement of needed goods and services, as
measured by comparison with the typical behavior of private parties in similar circumstances,’ and (2)
whether the narrow scope of the challenged action defeat[s] an inference that its primary goal was to
encourage a general policy rather than address a specific proprietary problem. Sprint Spectrum L.P. v.
Mills, ¶ 101.
Page 23 – Memorandum in Support of Preliminary Injunction Motion
Sprint Spectrum L.P. v. Mill, 283 F3d 404, ¶ 102. ‘In sum, [the Second Circuit] conclude[d] that
the Telecommunications Act does not preempt nonregulatory decisions of a local governmental
entity or instrumentality acting in its proprietary capacity; that the School District acted in a
proprietary capacity, not a regulatory capacity.’ Id. ¶ 109. In context of our case, the
Second Circuit essentially addressed the issue on point, ‘The School District has the same right
in its proprietary capacity as property owner to refuse to lease the High School roof for the
construction of such a facility. Under Boston Harbor, such a refusal by the District would not
have been preempted.’ Id. ¶ 106.
Even if removing WI-FI is considered a regulatory decision,
WI-FI (an end-use indoor product) is not part of the infrastructure Congress intended3 to roll out.
To find as such, this Court would have to expand the holding in Farina v. Nokia, Inc.,
578 Supp 2d 740 (ED Pa 2008), which found cell phones were a facility4 within the meaning of
the TCA and Farina’s tort and consumer protection sounding claims preempted by the
Federal Communication Commission’s (FCC) radiofrequency regulations. Because indoor
end-use of WI-FI by a school is not part of the infrastructure Congress intended, the claims
herein are not preempted. Fortunately, the Court need not address this issue as it is a proprietary
decision.
3 The court had noted in Sprint I (Sprint Spectrum L.P. v. Mills, 65 F Supp 2d 148 (1999),
that federal law expresses a strong interest in establishing national wireless communications service
`for the purpose of the national defense, for the purpose of promoting safety of life and property
through the use of wire and radio communication,' 65 F Supp 2d, 155 (quoting 47 USC § 151); that
‘[t]he Act is designed to provide for a pro-competitive, deregulatory national policy framework
designed to accelerate rapidly private sector deployment of advanced telecommunications and
information technology and services to all Americans and by opening all telecommunications
markets to competition,’ 65 F Supp 2d, 160-61 (internal quotation marks omitted); and that the Act
"mandate[s] that aggrieved parties be granted relief on an expedited basis," id., 161.
4 47 USC § 332(c)(7)(B)(iv) provides, ‘No State or local government or instrumentality thereof
may regulate the placement, construction, and modification of personal wireless service facilities
on the basis of the environmental effects of radio frequency emissions to the extent that such
facilities comply with the Commission's regulations concerning such emissions.’
Page 24 – Memorandum in Support of Preliminary Injunction Motion
Regarding current regulations5, there are no SAR values for children, pulsed frequencies,
or long-term exposure6, and, therefore, there is no conflict preemption. This is because
SAR values are based on a short-term (6-minute average) exposure to protect solely against
heating a 6-foot, 200-pound adult male, not a child. Because SAR guidelines do not apply to
children, a jury verdict in this case, unlike one in Farina (‘Allowing juries to impose liability on
5 In 1995 [through political compromise], the FCC adopted a maximum specific absorption rate
(SAR) – which measures the amount of energy absorbed in human tissue – in ‘uncontrolled’
environments of .08 watts/kilogram (W/kg) as averaged over the whole body and a 1.6 W.kg
spatial peak as averaged over any 1 gram of tissue, as measured for frequencies between 100 kHz
and 6 GHz. See, Farina opinion at 19, http://www.ca3.uscourts.gov/opinarch/084034p.pdf.
6 ‘The current federal guideline is base on short-term heating effect set at 6-minutes for those
occupationally exposed and 30 minutes for public exposure. An FCC guideline based on a
30-minute exposure is unrealistic for exposure that is likely to be 24/7 for decades. However,
if this guideline is extrapolated for long-term exposure, the exposure limit decreases and
approaches guidelines established by other countries (Table 1) * * *
According to Table 1, if the goal is to protect people who use a wireless computer daily for
one year, their exposure should not exceed 0.33 microwW/cm2 (a value similar to the
Salzburg guideline) and to protect them for 10 years their exposure should not exceed
0.03 microW/cm2. The FCC will tell you their guideline is not intended for long-term
extrapolation in this manner. However, since the FCC doesn’t have a long-term guideline and
since the extrapolated values fit the scientific data for long-term health effects the
0.33 microW/cm2 and 0.03 microW/cm2 guidelines are more appropriate to determine
‘relative safe’ exposure limits * * *.' Havas, M., Analysis of Health and Environmental Effects of
Proposed San Fancisco Earthlink Wi-Fi Network, Environmental & Recourses Studies,
Trent University, at 4 (May 2007), http://www.vws.org/documents/16DrMagdaHavas_WiFi51pg
s_000.pdf.
Page 25 – Memorandum in Support of Preliminary Injunction Motion
cell phone companies for claims like Farina’s would conflict with the FCC’s regulations.’
Farina, 64-65) cannot be considered to second guess the FCC’s conclusion on how to balance its
objectives as it has made no conclusions regarding safe exposure levels of non-ionizing radiation
in children. Furthermore, ‘Under the law, FDA does not review the safety of radiation-emitting
consumer products such as mobile phones before marketing * * *’ (there is no premarket
testing). FCC website as of October, 2010; see also, Cell Phone Safety Bill LC 1273 Introduced
by Oregon Senator Chip Shields February 3rd That Will Require Warning Labels on Cell Phones
Sold in Oregon, weepnews.blogspot.com/2011/02/scientists-recommend-new-exposure.html.
Because there is no premarket testing nor any safe exposure levels for children, the burden shifts
to Portland Public Schools to prove WI-FI is safe, which it cannot do.
For the foregoing reasons, the claims herein are not preempted.
(f) Application of Strict Scrutiny: Portland Public School’s policy is not
narrowly tailored to a compelling interest.
Alexandra and David Morrison prevail because a narrower way exists to carry out the
school’s interest in educating via the internet that is not violative of their fundamental rights.
The burdening and limiting of Alexandra Morrison’s life, ability to procreate, health,
well-being, and liberty and David Morrison’s right to the health, care, nurture, and continuing
well-being of his child violates fundamental rights and liberties and invokes strict scrutiny.
Pierce, 268 US 510 (1925), is a famous Oregon case that reiterated the high scrutiny
standard for interfering with Fourteenth Amendment protected parental rights.
The Supreme Court required that the State’s compelling interest in compulsory education of
every child must be met in a way less intrusive to parental rights (the right to send their children
to a religious school so long as State standards are met).
Page 26 – Memorandum in Support of Preliminary Injunction Motion
Portland Public Schools’ policy is not narrowly tailored because it could use a cabled
system to educate via the internet. Cabled systems do not emit WI-FI and do not violate
Alexandra and David Morrison’s fundamental rights, are superior systems that are faster and
more secure. See Bennett ¶ 14. Moreover, Portland Public Schools may not be required to
rewire its schools as dLAN adaptors are available that transmit the internet signal by way of
ordinary electrical wiring. Speaking from a principal who made the switch to a hard-wired
system:
On educating myself through the information provided me, I immediately
removed all wireless technology from our school and banned the use of cell
phones within our building. It was not a major change to hard-wire all computers.
In our older classes, every child has a laptop, which connects to the internet
through one of several hard-wired internet connections. We have advanced
technology without any of the dangers of wireless radio waves. Kristin Cassie,
Principal, Roots and Wings Montessori Place, Surry, B.C., November 1, 2010,
www.wifiinschools.org.uk/resources/Letter+from+Principal.pdf.
The school’s compelling interest, and high duty, in protecting a child from engaging in
activities that are ‘not injurious to the health * * * of the ordinary child’ (Meyer at 25), outweighs
the school’s not so important interest of using WI-FI to educate via the internet. Moreover, the
school’s compelling interest in compulsory education (Pierce at 10) is met by using a cabled
system while not increasing exposure. See Trower Dec. ¶ 83.
WI-FI is not mandatory in any sense, it is voluntary. It does not require city permits or
meet signal coverage requirements. It is not an essential public safety service. It is a want, not a
need. It is a proprietary choice.
Portland Public Schools’ policy of using WI-FI to educate via the internet is not narrowly
tailored and does not survive strict scrutiny.
Page 27 – Memorandum in Support of Preliminary Injunction Motion
(g) The scope of the injunction is warranted and constitutional.
The remedy sought is an injunction against Portland Public Schools’ use of WI-FI in all
of its schools. The scope of this remedy (as opposed to limiting the injunction to the
Mount Tabor Middle School, where Alexandra Morrison attends) is warranted because of the
public interest in protecting the health and well-being of children when they are in school.
Alternatively, the remedy sought is the enjoining Portland Public Schools’ use of WI-FI
at the Mount Tabor Middle School. However, this will lead to future litigation as
Alexandra Morrison progresses through school.
II. Irreparable Injury.
Substantial, cumulative, and progressive exposure to WI-FI during her developmental
growth stages while at school deprives and burdens Alexandra Morrison’s rights to life, liberty,
health and procreation guaranteed by the Fourteenth Amendment and causes irreparable harm as
a direct result of Portland Public Schools’ violations of her constitutional rights.
David Morrison’s inability to care for and control his child’s health and continuing
well-being deprives him of rights and basic liberties guaranteed by the Fourteenth Amendment
and causes irreparable harm as a direct result of Portland Public Schools’ violations of his
constitutional rights.
Alexandra and David Morrison’s injuries will be redressed only if this Court declares
Portland Public Schools’ policy of educating via the internet by way of WI-FI unconstitutional
and enjoins the use thereof.
III. Equities tip in favor of injunction.
Because of the superior performance (faster speed and increased security) of a cabled
system (Bennett Dec ¶ 14), Portland Public Schools cannot argue any other reason for continuing
its policy than cost.
Page 28 – Memorandum in Support of Preliminary Injunction Motion
To the extent there are costs of converting to a cabled internet, they are not significant
and do not outweigh our children’s right to life, liberty, and procreation unfettered by exposure to
ill health, or a parent’s right to the control of his child’s health and continuing well-being.
Cost is de minimus in light of the potential costs of using this technology, including:
(i) the costs of sheer human suffering as children and teachers, who are all guinea pigs for this
technology, become ill or die; (ii) the costs of unnecessary illness; and (iii) the costs of the
inevitable litigation that will come. Additionally, the staff and equipment required to manage
wireless capacity and to monitor usage, puts the overall costs much higher. Bennett Dec. ¶ 14.
Smart wireless devices associated with wireless networks can cause unexpected congestion,
adding to the costs. Id. The demand from these devices will only increase and result in the need
for more powerful transmitters. Id. Truly, the school will benefit the most from the injunction.
Additionally, Portland Public Schools’ interest in educating via the internet will not be
negatively affected by converting to a cabled system, but will, in fact, be enhanced as cabled
systems deliver data faster, safer, and more sustainable, while providing economy and advancing
technology in education. See Bennett Dec. ¶ 14. How often is an injunction a win-win?
IV. Public Interest.
Public interest is strongly furthered by an injunction. The most important asset of our
nation must be our children. Providing our children an educational environment in which they
can learn, play, develop and thrive is strongly in the public interest. Providing our children with
an educational environment that is free from exposure to ill health and disease is strongly in the
public interest. The public interest is also furthered by the scope of the injunction and should not
be limited to Portland Public Schools’ Mount Tabor Middle School.
Page 29 – Memorandum in Support of Preliminary Injunction Motion
Conclusion
Portland Public Schools’ policy of educating via the internet by using WI-FI is
unconstitutional as it violates Alexandra and David Morrison’s fundamental rights and liberties
guaranteed by the Fifth and Fourteenth Amendments and is an ongoing experiment in violation
of Title 45. All the required elements for preliminary injunctive relief are met.
This Court should expeditiously grant the requested injunctive relief, assuring it is in place at the
earliest possible time.
Respectfully submitted this 27th day of June, 2011,
/s/ Shawn E. Abrell /s/ Tyl W. Bakker
SHAWN E. ABRELL, WSBA No. 41054 TYL W. BAKKER, OSB No. 90200
Lead Counsel for Plaintiffs Local Counsel for Plaintiffs
*Pro Hac Vice
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