Appendix — Perumal v. Saddleback Valley Unified School District

Supreme Court brief1988

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

ALEXANDER PERUMAL, et ail.,

Petitioners

Vv.

SADDLEBACK VALLEY UNIFIED SCHOOL DISTRICT, et al.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO THE

CALIFORNIA COURT OF APPEAL

MICHAEL W. MCCONNELL

1111 East 60th Street

Chicago, Illinois 60637

(312) 702-3306

MICHAEL J. WOODRUFF

Counsel of Record

KIMBERLEE W. COLBY

MICHAEL STOKES PAULSEN

Post Office Box 1492

Merrifield, Virginia 22116

(703) 642-1070

DAVID L. LLEWELLYN, JR.

2700 North Main, Suite 1100

Santa Anna, California 92701

(714) 667-7994

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

He. *

TABLE OF CONTENTS

Appendix A —Opinion of the California Court of Ap-

peal, Fourth Appellate District, Division

IE eterna iin tains ied ciency ikaelesadbadessoon

Appendix C —Order Denying Review by the California

I a a ca canwnkaee

Appendix D —Order of California Superior Court deny-

RRA E tel ate er ie are ewe

Appendix E —Order of Justice O’Connor granting ex-

ene Wr I Sites ke ee,

Appendix F —Relevant Statutory Provisions and School

I ns es ae

Page

47a

48a

49a

50a

5la

APPENDIX A

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

No. G003181

(Super. Ct. No. 45-78-95)

ALEXANDER PERUMAL and FREDERICK RUSSELL READ,

by Guardian ad Litem, F. ZNETTE READ,

Petitioners and Appellants,

Vv.

SADDLEBACK VALLEY UNIFIED SCHOOL DISTRICT, et al.,

Respondents.

OPINION

[Filed Jan. 29, 1988]

APPEAL from a judgment of the Superior Court of

Orange County, Philip E. Schwab, Judge. Affirmed.

David L. Llewellyn, Jr. for Appellants.

Rutan & Tucker, David C. Larsen and Leonard P.

Sawyer for Respondents.

Alexander Perumal and Frederick Read appeal from

a judgment denying a petition for writ of mandate seek-

ing an order of the court directing Saddleback Valley

Unified School District to allow distribution of a re-

ligious club’s flyers on the district’s high school campuses

and to compel publication of the club’s advertisement in

a high school yearbook.

During the 1984-1985 school year, Alexander Perumal,

a student at El Toro High School, and Frederick Read,

a student at Mission Viejo High School, were members

of student groups known as “New Life.” The groups

were organized to provide a forum for students to en-

gage in Bible study and prayer during school. The stu-

dents talked informally outside in groups of five to

twenty-five during the lunch hour. The school’s prin-

cipals and the school district were aware of the meet-

ings, but did not object.’

1 Saddleback Valley Unified School District had previously allowed |

its high schools to sponsor religious student clubs such as New

Life. But, as a result of parental complaints and county counsel

opinions, the district, in March 1981, withdrew its official recogni-

tion. The students were permitted to continue meeting during the

school day in classrooms and to advertise their meetings as un-

official organizations. In April 1981, a lawsuit was filed against

the district seeking to prevent the groups from operating at the

schools.

The members of the New Life club were informed they could

no longer formally meet; only school sponsored clubs were per-

mitted to do so. They were told they could meet informally by

eating lunch together and could discuss whatever they wished.

Small groups of students at El Toro and Mission Viejo High

Schools immediately began to conduct informal Bible studies dur-

ing their lunch period.

In 1984, Perumal and Read attempted to reestablish formal

New Life clubs at their respective schools pursuant to the Federal

Equal Access Act of 1984. (20 U.S.C. § 4071 et seq.) Perumal and

Read, presenting themselves as presidents of the New Life clubs

at their respective high schools, appeared before school board

meetings. With the support of a citizens’ Christian Evangelical ©

group, Perumal and Read contended the district permitted other

noncurriculum related clubs to meet and the district could not

prevent them fom doing the same. The district denied the re-

quests.

Perumal and Read then requested the district to consider modi-

fying the existing policy by creating a limited open forum so the

New Life clubs could formally operate. After hearing extensive

In February 1985, in a written request to El Toro’s

principal, Perumal sought approval to distribute a flyer

announcing the meetings. His request was denied. Read

made a similar request to his principal and received the

same response. Read also submitted an advertisement

for the meetings which he asked be placed in the Mission

Viejo High School yearbook. It was also rejected.

Perumal and Read filed a petition for writ of mandate

in superior court. They sought an order directing Saddle-

back Valley Unified School District to permit distribu-

tion of the New Life flyers at their high schools and to

compel the publication of Read’s New Life yearbook

advertisement. Their petition was denied without com-

ment.

Must a tax supported high school district board, which

has adopted a closed forum policy, allow a student club

to distribute religious flyers on the schoo! campus dur-

ing school hours or to place religious advertisements in

a high school yearbook? In answering these questions,

we look to the state and federal constitutions and rele-

vant statutory and case authority.

“The First Amendment of the United States Constitu-

tion decrees, ‘Congress shall make no law respecting an

2stablishment of religion, or prohibiting the free exercise

thereof ....’ [] The Amendment is made applicable

to the states through the Fourteenth Amendment (Abing-

ton School Dist. v. Schempp (1963) 374 U.S. 208, 215

(10 L.Ed.2d 844, 854, 83 S.Ct. 1560]). [9] California’s

Constitution, however, in provisions not dependent upon

the federal Constitution (Cal. Const., art. I, §§ 4, 24),

public debate on the matter, including statements from Perumal

and Read, the district decided the existing policy should remain

unchanged.

2 The flyer and yearbook advertisement are reproduced in the

margin.

expresses the same sentiments: ‘Free exercise and en-

joyment of religion without discrimination or preference

are guaranteed. ... The Legislature shall make no law

respecting an establishment of religion.’ (Cal. Const.,

art. I, §4.) {%] But California’s constitutional provi-

sions are more comprehensive than those of the federal

Constitution (Fox v. City of Los Angeles (1978) 22 Cal.

8d 792, 796 [150 Cal.Rptr. 867, 587 P.2d 663]), and

particularly so in the area of involvement of religion

in schools. Thus, article XVI, section 5, in providing that

‘Neither the Legislature, nor any county, city and county,

township, school district, or other municipal corporation,

shall ever make an appropriation, or pay from any pub-

lic fund whatever, or grant anything to or in aid of any

religious sect, church, creed, or sectarian purpose to help

or to support or sustain any school, college, univer-

sity... ,’ ‘forbids more than the appropriation or pay-

ment of public funds to support sectarian institutions.

It bans any official involvement, whatever its form, which

has the direct, immediate, and substantial effect of pro-

moting religious purposes.’ (California Educational Fa-

cilities Authority v. Priest (1974) 12 Cal.3d 593, 605,

fn. 12 [116 Cal.Rptr. 361, 526 P.2d 513].)” (Bennett v.

Livermore Unified School Dist. (1987) 193 Cal.App.3d

1012, 1016-1017, emphasis added. )

California, pursuant to Education Code section 48907

insures students free speech rights provided there is no

disruption of the educational process. But the statute

also allows for school districts to promulgate their own

lawful regulations and provides the students’ rights may

be restricted if the expression is in violation of those

regulations.*

3 The California Legislature defined the free speech rights of

public school students in section 48907: “Students of the public

schools shall have the right to exercise freedom of speech and of

the press including, but not limited to, the use of bulletin boards,

the distribution of printed materials . . . and the right of expression

The district, pursuant to Education Code section 48907,

enacted board policy 5133.1 prohibiting off-campus groups

from functioning or advertising on campus.‘ But Peru-

in official publications, whether or not such publications or other

means of expression are supported financially by the school or by

the use of school facilities, .. .” The section permits expression to

be restricted which may result in “the violation of lawful school

regulations, or the substantial disruption of the orderly operation

of the school.”

Section 48907 requires each school district to adopt reasonable

written provisions “for the time, place, and manner of conducting

such activities ....” Furthermore, it prohibits “prior restraint

of material prepared for official school publications [including

yearbooks] except insofar as it violates this section.” The school

district has the burden of showing justification for any limitation

of student speech without undue delay.

* Board policy 5133.1 states in pertinent part: “Clubs: School

Sponsored.

“Clubs recognized by the Board of Education are those which

are sponsored by the individual schools of the district. Clubs shall

be responsible to the school through which they are organized.

“School-sponsored clubs may be permitted to use official name of

the school, to use building and other facilities, to have publicity in

daily bulletins, bulletin boards and school publications, to wear

identifying emblem but not special clothing, to sell on school prem-

ises tickets or bids to special activities sponsored by the club.

“No off-campus or private clubs are permitted to function in

the school. They are also restricted from advertising in any form.

“The only clubs and organizations which may use school facili-

ties during the school day are those which are school sponsored.

The school day includes nonclassroom time.” (pp. 1-2.)

Administrative Regulation 5133.1 states in pertinent part:

“1. Responsibilities of the Principal (continued)

“(d) The principal shall ascertain that all clubs sponsored by

the school are not unlawfully selective nor discriminatory in mem-

bership selection nor in the conduct of their activities. Any inci-

dence of unlawful selection or discriminatory conduct is to be dealt

mal and Read maintain because they are petitioning as

individuals and not as members of groups, board policy

5133.1 is inapplicable. We disagree.

New Life falls within the plain and ordinary mean-

ing of an “off-campus or private club.” A group is a

club when it advertises itself as an identifiable entity,

promotes a common purpose, and solicits new members.

Webster’s Third New International Dictionary (1971)

at page 430, column 1, b(1), defines “club” as “an as-

sociation of persons for social and recreational purposes

or for the promotion of some common object (as litera-

ture, science, political activity) usually jointly supported

and meeting periodically .. .”

New Life has always been identified by its specific

name. In their correspondence with the district, Perumal

and Read referred to their groups as New Life. The

advertisements sought to be distributed and published

promote “New Life at ETHS” and “Mission Viejo New

Life.”

Both New Life groups maintained leadership structures

to effectively pursue the club’s purpose and recruit new

members. In their communications with the district, in-

with by causing the unlawful practice to cease or by disbanding the

club.

“(e) The principal shall be responsible for making sure no off-

campus, private, or non-sponsored clubs or organizations function

on the campus during the school day, including break times, iunch,

or other non-classroom time. These clubs or organizations may

apply through the appropriate Use of Facility channels to use

school facilities outside of the school day.” (p. 2.)

“a. Clubs: School Sponsored (continued)

“3. Freedom of Expression

“Nothing in Board Policy 5133.1 nor Administrative Regulation

5133.1 shall be construed to be in opposition to students’ rights of

freedom of expression as specified in Education Code Section 48916

or Board Policy 5145.3 and 6144.1.” (p. 3.)

cluding their requests to distribute literature, Perumai

and Read referred to themselves as “president” of their

respective groups. As Permual’s and Read’s advertise-

ments indicated, the New Life groups met on specific

days, at a specific time, and in a specific location. The

meetings were not merely spontaneous lunch discussions.

Moreover, their proposed advertisements put to rest

any lingering doubts. They provide information on the

group known as “New Life” and a meeting schedule.

They also state the purpose is “meeting other Christians,”

“studying the Bible,” and “prayer.” The New Life groups

are private clubs within the commonly understood mean-

ing of “off-campus or private club.”

Board policy 5133.1 prohibits off-campus clubs from

functioning or advertising on campus. The students argue

board policy 5133.1 is vague and overbroad because it

does not explain what an “off-campus or private club”

is and therefore they do not know how to conform with

the regulation. They also suggest they must, by defini-

tion, not be off-campus or private clubs because the district

did not object to the New Life meetings until there was

an attempt to advertise. Therefore, the New Life groups

could not be off-campus or private clubs because advertis-

ing should not transform an otherwise permissible in-

formal discussion group into an impermissible club.

But the students miss the point. New Life is a group,

and not just because it advertises. And the fact the

board has allowed the students to informally meet is of

no moment. The district in enacting board policy 5133.1

changed from a limited open forum to a closed forum.

But as the district acknowledges, interpersonal communi-

cation or informal discussions between students during

the school day cannot be prohibited. And students may

still organize, outside of the school setting, to conduct

more forma! discussions.

Seemingly, the yearbook presents a different issue; the

school opened its advertising section to anyone who wished

| ace aeeaiam aiaiads |

to purchase space. The siudenis rely on the Federal

Equal Access Act of 1984. (20 U.S.C. §4071.)° The

Act applies to any public secondary school which receives

federal financial assistance. However, the Act is irrele-

vant in the present case. It applies only to schools which

have adopted a limited open forum policy. This school

520 U.S.C. section 4071 provides: “(a) Restriction of limited

open forum on basis of religious, political, philosophical, or other

speech content prohibited [f] It shall be unlawful for any public

secondary school which receives Federal financial assistance and

which has a limited open forum to deny equal access or a fair oppor-

tunity to, or discriminate against, any studenis who wish to conduct

a meeting within that limited open forum on the basis of the re-

ligious, political, philosophical, or other content of the speech at

such meetings. [§] (b) ‘Limited open forum’ defined [|] A public

secondary school has a limited open forum whenever such school

grants an offering to or opportunity for one or more noncurriculum

related students groups to meet on school premises during non-

instructional time. [{] (c) Fair opportunity criteria [{]] Schools

shall be deemed to offer a fair opportunity to students who wish

to conduct a meeting within its limited open forum if such school

uniformly provides that—

“(1) the meeting is voluntary and student-initiated;

“(2) there is no sponsorship of the meeting by the school, the

government, or its agents or employees;

“(3) employees or agents of the school or government are present

at religious meetings only in a nonparticipatory capacity ;

“(4) the meeting does not materially and substantially interfere

with the orderly conduct of educational activities within the school;

and

“(5) nonschool persons may not direct, conduct, control, or

regularly attend activities of student groups.”

We note at least one federal court has found application of the

Federal Equal Access “Act would require an unconstitutional re-

sult.” (Clark v. Dallas Independent School Dist. 671 F.Supp. 1119,

1124 (N.D. Tex. 1987.) In Clark, public high school students wished

to conduct prayer meetings on a limited open forum campus. The

court concluded the result demanded by the Act was constitutionally

impermissible. “[E]stablishment clause interests of the [school] dis-

trict prevail over the free exercise interests of the [students].”

(/d., at p. 1124.)

district as discussed, ante, has not. The district has chosen

a closed forum and only school-sponsored clubs may func-

tion or advertise.°

III

A state or federal constitutional analysis brings no

different result. Cases involving students’ religious rights

must be reviewed in the context of their First Amend-

ment rights and the district’s mandate to avoid violating

the establishment clause of the First Amendment. “The

free exercise clause of the federal Constitution embodies

two rights: Freedom to believe and freedom to act. “The

first is absolute but, in the nature of things, the second

cannot be.’ [Citation.] Under the free exercise clause,

freedom of conscience and freedom to adhere to such re-

ligious organizations or beliefs as the.individual may

choose is secured against governmental interference.

[Citation.] This is not to say, however, that religion

may be exercised wherever and whenever the adherent

chooses. [Citations.] The inevitable consequence of the

establishment clause when applied to religious ritual on

school property is to restrict that activity to preserve the

wall between church and state. ‘ “Our constitutional policy

. . . does not deny the value or the necessity for religious

training, teaching or observance. Rather it secures their

free exercise. But to that end it does deny that the

state can undertake or sustain them in any form or de-

gree. For this reason the sphere of religious activity, as

distinguished from the secular intellectual liberties, has

been given the two fold protection and, as the state cannot

forbid, neither can it perform or aid in performing the

religious function. The dual prohibition makes that funce-

tion altogether private.”’ [Citations.]” (Johnson v.

® Moreover, the Act would apply only to students who “wish to

conduct a meeting within that limited open forum.” The students

in placing the advertisement in the yearbook, wished to promote

their group. Stated simply, the yearbook announcement was not a

“meeting” and the students cannot rely upon the Act.

10a

Huntington Union High Sch. Dist. (1977), 68 Cal.App.

3d 1, 16-17, fn. omitted. )

In Johnson, “(high school students) sought judicial

relief from a refusal of the . . . [high school] (district)

to permit a voluntary student Bible study club to meet

and conduct its activities on the school campus during the

school day.” (Jd., at p. 6.) The court recognized “The

precise question we must decide is whether school officials

of a tax-supported high school of the district may permit

plaintiffs’ Bible study club to meet and [to] conduct its

activities on the school campus during the school day

.... (d., at p. 11, emphasis added. )

In determining whether the school district was consti-

tutionally required to bow to the student religious group’s

demands, the Johnson court relied on the tripartite test

enunciated by the U.S. Supreme Court in Lemon v. Kurtz-

man (1971) 403 U.S. 602, 612-613 [29 L.Ed.2d 745,

755-756, 91 S.Ct. 2105]. “To pass constitutional muster

the state activity must satisfy three conditions: (1) it

must have a secular legislative purpose; (2) its primary

effect must neither advance nor inhibit religion; and

(3) it must not foster excessive governmental entangle-

ment with religion. . . . Failure to meet any one of the

three conditions is fatal to the constitutionality of state

action. [Citations.]” (Johnson v. Huntington Beach

Union High Sch. Dist., supra, 68 Cal.App.3d 1, 11.)

The court addressed all three conditions, but adjudged

the primary effect of allowing the Bible study club to

meet and to conduct its activities would be to advance

religion because “state financial support would flow di-

rectly to the club.” (/d., at p. 12.) It did “not rest [its]

decision . . . on financial aid alone . . . [but acknowl-

edged] . . .[t]his aspect of the effect test reaches the

essence of the establishment clause proscription. .. .

[I]mpermissible governmental support is present when

the weight of secular authority is behind the dissemina-

tion of religious tenets.” (Jd., at pp. 12-13, fn. omitted.)

lla

Perumal and Read argue, and we acknowledge, many

factual differences between the Johnson scenario and ours.

The students in Johnson attempted to meet in a classroom

and sought the services of a paid faculty sponsor. But

we find the similarity of the student requests more con-

vineing than the differences.

“Under the district’s rules and regulations, the club

will become an entity ‘sponsored by the school’ and as

such will be entitled to use the school name in connection

with its activities, to free use of school premises and

property, to access to the school newspaper and school

posting facilities to advertise its activities, and to solicit

contributions on campus during the school day. Thus,

the consequence of permitting the club to operate on

campus as a recognized student organization is to place

school support and sponsorship behind the religious ob-

jectives of the club. The Bible study club would implicitly

become an integal part of the school’s extracurricular

program conducted during the school day when students

are compelled by law to attend the school.” (Jd., at p. 18,

fn. omitted, emphasis added. )

“The school permission sought by plaintiffs would meld

the secular with the sectarian and would empower the

Bible study club members to use the prestige and au-

thority of the school in proselytizing their beliefs among

students whose presence on the campus is compelled by

law and who may be vulnerable to the pressure of an

officially recognized student religious organization. This,

the First Amendment will not permit.” (Jd., at p. 15.)7

Nor does it matter that the religious activity was

student initiated. In Collins v. Chandler Unified School

™ The court, relying on section 4 of article I and section 5 of

article XVI of the California Constitution also “conclude|{d] that

the California Constitution will not suffer school officials to permit

plaintiffs’ Bible study club to meet and conduct its activities on

school campus durng the school day.” (Johnson v. Huntington

Beach Union High Sch. Dist., supra, at p. 16.)

12a

Dist. (9th Cir. 1981) 644 F.2d 759, public high school

students sought permission to open voluntary assemblies

with prayer. The court found permission to do so would

violate the Establishment Clause. The court concluded

there is “no meaningful distinction between school au-

thorities actually organizing the religious activity and

officials merely ‘permitting’ students to direct the exer-

cises.” (Id., at p. 761.) The Board cannot adopt a hands-

off policy. It is mandated “to deny the use of school

facilities to the students who shall voluntarily and upon

their own initiative, perform such religious exercises... .”

(Id., at p. 762.) ®

In Brandon v. Board of Ed. of Guilderland Cent. Sch.

(2nd Cir. 1980), 635 F.2d 971, several high school stu-

- dents sought permission from their school principal to

conduct communal prayer meetings on campus immedi-

ately before the school day commenced. “The group noted

that it was not seeking supervision or faculty involve-

ment, and stated that its activities were voluntary and

would not conflict with other school functions.” (J/d., at

p. 973.)

The court found the students’ free exercise of their

rights were not significantly encumbered by the “‘District’s

refusal to permit communal prayer meetings to occur

on school premises.” (/d., at p. 977.) The court noted

even if those rights were limited, “an authorization of

student-initiated voluntary prayer would have violated the

Establishment Clause by creating an unconstitutional link

between church and state.” (Id., at p. 978.)

The court was unimpressed with the students’ argu-

ment they merely were “seek[ing] to exercise their

rights to free speech in a public forum, unencumbered by

$8 The court relied on section 4 of article I and section 5 of article

XVI of the California Constitution holding “{T]he state action. .

is proscribed .... [9] [The state constitution] ‘bans any official

involvement, whatever its form, which has the direct, immediate,

and substantial effect of promoting religious purposes.’ [ Citation. |”

(Johnson V. Huntington Beach Union High Sch., supra, at pp. 15-16.)

ieee

13a

governmental regulation of the context of their ‘speech.’ ”

(Id., at p. 980.) The court recognized “a high school is

not a ‘public forum’ where religious views can be freely

aired. The expression of religious points of view, and

even the performance of religious rituals, is permissible

in parks and streets when subject to reasonable time,

place, and manner regulations. [Citations.] The facili-

ties of a university have also been identified as a ‘public

forum,’ where religious speech and association cannot

be prohibited. [Citations.] A high school classroom,

however, is different [citation]. While students have First

Amendment rights to political speech in public schools

[Citation], sensitive Establishment Clause considerations

limit their right to air religious doctrines. ... [S]tu-

dents’ free speech and associational rights, cognizable in

a ‘public forum,’ are severely circumscribed by the Es-

tablishment Clause in the public school setting. Because

of the symbolic effect that prayer in the schools would

produce, we find that Establishment Clause considera-

tions must prevail in this context.” (Jd., at p. 980, em-

phasis added. )

We conclude, therefore, that board policy 5133.1 is a

constitutionally permissible school board regulation. It

allows only school sponsored activities on its campus.

It meets all prongs of the Lemon test and therefore does

not contravene the establishment clause. Its enactment

is secular, promoting the general well-being of the cam-

pus; because religious groups are not singled out for

better or worse treatment, its principal or primary ef-

fect neither advances nor inhibits religion. No entangle-

ment with religion exists.

So long as the district maintains a closed forum policy,

it cannot constitutionally recognize New Life groups as

school-sponsored clubs. The groups without such recog-

nition may not hand out the flyers on campus nor may

they advertise in the yearbook.

l4a

Judgment affirmed.

/s/ Sonenshine

SONENSHINE, J.

I CONCUR:

/s/ Wallin

WALLIN, Acting P.J.

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18a

Crosby, J., dissenting.

I emphatically dissent from my colleagues’ decision to

uphold state suppression of student speech in this case.

Ironically, in another opinion filed today we recognize

the broad right of free expression accorded to high

school editors of official campus publications under the

law of California. (Leeb v. DeLong (Jan. 29, 1988,

G002587) ——— Cal.App.3d ——,, 243 Cal.Rptr. 494) The

specific expression at stake there consisted of a trivial

little article in an April Fool’s Day spoof edition of a

high school newspaper accompanied by a picture of five

coeds supposedly applying to pose nude in Playboy maga-

zine. The issue was suppressed by the school district as

potentially defamatory. Leeb holds a significant threat

of a successful defamation action is one of the very few

instances in which a school administration may censor

its own student publications; it also notes that no such

right exists with respect to the private publications of

students merely because they are distributed on campus.

(Id., at p. —, 243 Cal.Rptr. 494.)

Here, by contrast, we deal with serious student ex-

pression having no discernible prospect of reflecting

badly on the school, the district, or any particular stu-

dent—much less of threatening a potential action for

damages against the district—yet the majority of this

panel unfortunately and unnecessarily restricts the rights

described in Leeb in both school-sponsored and privately

produced student publications, defending its action in

the name of the First Amendment of the United States

Constitution.’ Petitioners may have “expected a civics

lesson, but not the one the Court teaches them today.”

(Hazelwood School District v. Kuhlmeier (Jan. 13, 1988,

?The First Amendment provides, “Congress shall make no law

respecting an establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech, or of the

press; or the right of the people peaceably to assemble, and to peti-

tion the Government for a redress of grievances.”

19a

No. 86-836) —— US. . [slip opn., p. 15] (dis.

opn. of Brennan, J.).)

“In God We Trust” graces every United States coin

a child hands to the ice cream man, and public school

students who choose to participate in chanting the flag

salute announce that we are “one nation, under God... .”

At the commencement of every session of the United

States Supreme Court, the bailiff invokes the protection

of the Almighty; and every justice of that court and

every president in our country’s history has been sworn

into office with a hand on the Bible. And so on, and so

on, and so on. Our Constitution does not seek to secular-

ize society ; it fosters tolerance.

The present majority, however, manages to treat the

free expression of high school students during recess

and a section of the yearbook devoted to paid advertise-

ments as an anathema equivalent to the distribution of

drugs or obscenity on campus or the broadcast of ship

departures in wartime. This jarring invasion of funda-

mental liberties is required, we are told, simply because

the students’ expression purportedly was of a religious

nature. But one person’s “religious” expression is an-

ther’s trash. It is not up to school districts, courts, or

anyone else to make such classifications, legally or mor-

ally, with respect to the unsubsidized musings and writ-

ings of private persons. These petitioners should have

been left to distribute their harmless scraps of paper

and run the innocuous little yearbook ad.

I would issue a writ of mandate to require the school

district to treat so-called religious advertisements in the

high school yearbook no differently from commercial

speech in that forum and to cease interference with the

distribution of New Life flyers, subject only to reason-

able time, place, and manner restrictions.* In my opin-

2 Although the yearbook has long since been published and peti-

tioners have undoubtedly graduated, I agree the appeal should

20a

ion, both the federal and state * Constitutions, Education

Code section 48907,‘ and the spirit, if not the letter, of

not be dismissed for mootness, as the district argues. Where

important constitutional rights are implicated and “the issue raised

is of continuing public interest and likely to recur in circumstances

where, as here, there is insufficient time to afford full appellate

review . . . it is appropriate to resolve the matter .... (John A.

v. San Bernardino Unified School Dist. (1982) 33 Cal.3d 301, 307;

Gordon J. v. Santa Ana Unified School Dist. (1984) 162 Cal.App.3d

530, 533.)” (Leeb v. DeLong, supra, —— Cal.App.3d ——, ——

{slip opn., p. 5].)

3 The right to free expression contained in the California Con-

stitution is more liberally construed than the First Amendment.

(Wilson v. Superior Court (1975) 13 Cal.3d 652, 658; Leeb v. De-

Long, supra, Cal.App.3d ——— [slip opn., p. 29, fn. 1].) Article

I, section 2, subdivision (a) states, “Every person may freely speak,

write and publish his or her sentiments on all subjects, being

responsible for the abuse of this right. A law may not restrain or

abridge liberty of speech or press.” Article I, section 4, provides,

“Free exercise and enjoyment of religion without discrimination or

preference are guaranteed. This liberty of conscience does not

excuse acts that are licentious or inconsistent with the peace or

safety of the State. The Legislature shall make no law respecting

an establishment of religion.”

4 Education Code section 48907 states, “Students of the public

schools shall have the right to exercise freedom of speech and of

the press including, but not limited to, the use of bulletin boards,

the distribution of printed materials or petitions, the wearing of

buttons, badges, and other insignia, and the right of expression

in official publications, whether or not such publications or other

means of expression are supported financially by the school or by use

of school facilities, except that expression shall be prohibited which

is obscene, libelous, or slanderous. Also prohibited shall be material

which so incites students as to create a clear and present danger

of the commission of unlawful acts on school premises or the viola-

tion of lawful school regulations, or the substantial disruption of

the orderly operation of the school. [{] Each governing board

of a school district and each county board of education shall adopt

rules and regulations in the form of a written publications code

which shall include reasonable provisions fcr the time, place, and

manner of conducting such activities within its respective juris-

diction. [{] Student editors of official school publications shall be

2la

the Equal Access Act (20 U.S.C. § 4071 et seq.)* re-

quire the opposite conclusion.

responsible for assigning and editing the news, editorial, and

feature content of their publications subject to the limitations of

this section. However, it shall be the responsibility of a journalism

adviser or advisers «f student publications within each school to

supervise the production of the student staff, to maintain profes-

sional standards of English and journalism, and to maintain the

provisions of this section. [{] There shall be no prior restraint of

material prepared for official school publications except insofar as it

violates this section. School officials shall have the burden of show-

ing justification without undue delay prior to any limitation of

student expression under this section. [{] ‘Official school publica-

tions’ refers to material produced by students in the journalism,

newspaper, yearbook, or writing classes and distributed to the

student body either free or for a fee. [{] Nothing in this section

shall prohibit or prevent any governing board of a school district

from adopting otherwise valid rules and regulations relating to

oral communication by students upon the premises of each school.”

(Emphasis added. )

In compliance with Education Code section 48907, the district has

passed an implementing regulation, Board Policy 5145.2. (See Leeb

v. DeLong, supra, Cal.App.3d ——-., —— [slip opn., pp. 24-25].)

It contains no provision specifically concerning religious speech.

5 20 U.S.C. section 4071 provides, “(a) It shall be unlawful for any

public secondary school which receives Federal financial assistance

and which has a limited open forum to deny equal access or a fair

opportunity to, or discriminate against, any students who wish to

conduct a meeting within that limited open forum on the basis of

the religious. political, philosophical, or other content of the speech

at such meetings. [{] (b) A public secondary school has a limited

open forum whenever such school grants an offering to or oppor-

tunity for one or more noncurriculum related student groups to

meet on school premises during noninstructional time. [%] (c)

Schools shall be deemed to offer a fair opportunity to students who

wish to conduct a meeting within its limited open forum if such

school uniformly provides that—

“(1) the meeting is voluntary and student-initiated ;

“(2) there is no sponsorship of the meeting by the school, the

government, or its agents or employees;

22a

In this section of the discussion I examine the ques-

tions presented in light of the general constitutional her-

itage of this state’s legislative scheme and will conclude

that the district’s responses find no blessing in that

quarter.® In the section following, I will consider—and

reject—the contention that the district’s actions were

“(3) employees or agents of the school or government are present

at religious meetings only in a nonparticipatory capacity;

“(4) the meeting does not materially and substantially inter-

fere with the orderly conduct of educational activities within the

school; and

“(5) nonschool persons may not direct, conduct, control, or

regularly attend activities of student groups.”

6 Although petitioners’ brief on appeal appears to attempt to

revive the effort to achieve equal on-campus status (see Bender v.

Williamsport Area School Dist. (1986) 475 U.S. 534, [89

L.Ed.2d 501, 519] (dis. opn. of Burger, C.J.); Widmar v. Vincent

(1981) 454 U.S. 263), the petition for writ of mandate was narrowly

drawn. It sought only an order permitting distribution of the

flyers and publication of one yearbook advertisement. My analysis

is confined to those issues which, as the introductory paragraph

suggests, essentially (although not entirely) cast this case in an

establishment clause/free press context rather than as a clash of

the establishment and free exercise clauses of the First Amendment

and their California counterparts.

The latter case is surely on the horizon, however. (See, e.g.,

Ares, Religious Meetings in the Public School: Freedom of Speech

or Establishment of Religion? (1987) 20 U.C.Davis L.Rev. 313 and

cases cited at p. 314, fn. 3.) On-campus status for religious clubs

was the issue the Supreme Court failed to reach on procedural

grounds in Bender. Professor Ares sees an emerging rationale in

that court favoring the free exercise clause over the establishment

clause in the public schools but argues strongly against the notion

of officially sponsored school meetings of religious groups. That

issue was decided some time ago by Division Two in a manner

consistent with Professor Ares’ views. (Johnson v. Huntington

Beach Union High Sch. Dist. (1977) 68 Cal.App.3d 1, cert. den.

434 U.S. 877.)

23a

nonetheless compelled by the establishment of religion

clauses of the federal and state Constitutions.

The most obvious difficulty is the content-based refusal

to permit publication of the flyers and yearbook adver-

tisement. Prior restraints are highly disfavored and

may rarely be invoked in any circumstances. (Ed. Code,

§ 48907; Near v. Minnesota (1931) 283 U.S. 697; Dailey

v. Superior Court (1896) 112 Cal. 94; but see Hazel-

wood School District v. Kuhlmeier, supra, —— U.S.

{school administration may censor official high school

newspaper without offending First Amendment].) As we

noted in Leeb, “in the case of underground or unofficial

[high school] publications . . . [t]he school is merely a

distribution point and has neither a legal responsibility

for content nor a corresponding right to censor... per

Education Code section 48907. The power to regulate

the time, place, and manner of expression cannot be con-

verted into a right to control content.” (Leeb v. DeLong,

supra, Cal.App.3d at p. —, fn. 7 [slip opn., p. 18].)

The district’s argument to the contrary is a circular

transformation of procedure into substance: The dis-

trict’s undoubted, and uncontested, right to manage its

campuses does not confer an editorial license as well.

(Ed. Code, § 48907; Hazelwood School District v. Kuhl-

meier, supra, —— U.S. [slip opn., p. 12]; Tinker

v. Des Moines Independent Com. Sch. Dist. (1968) 393

U.S. 503.)

Students have a broad right to publish their own

privately produced writings on campus, and under Edu-

cation Code section 48907 student distribution of such

material may not be subjected to prior restraints. (/bid.)

The Legislature knows how to implement a prior re-

straint; and where it has specifically chosen not to do so,

no such right may be implied. (Bright v. Los Angeles

Unified Sch. Dist. (1976) 18 Cal.38d 450, 463-464.) Both

school principals were certainly aware the flyers were

produced, and to be distributed, by students. Thus, not-

24a

withstanding the board policy, the district had no power

to bar dissemination of the flyers under the law of this

state. Whether their publication could have led to some

sort of disciplinary action is another question (but the

correct answer is, ‘““No’’).

It is to be remembered that New Life meetings were

tolerated as informal campus get-togethers of a type that

would be difficult to prevent under the free association

and free exercise clauses of the First Amendment. (See,

e.g., Bender v. Williamsport Area School Dist., supra,

475 U.S. at p. — [89 L.Ed.2d at p. 519] (dis. opn. of

Burger, C.J.) ; Widmar v. Vincent, supra, 454 U.S. 263,

276: Zorach v. Clauson (1952) 343 U.S. 306.) They were

not treated as improper reunions of off-campus clubs.

Moreover, review of the flyers petitioners sought to dis-

tribute does not disclose a connection with any off-campus

organization at all. Stripped of the hyperbole, they are

simply announcements of voluntary lunchtime sessions to

study the Bible, meet “other Christians,” and engage in

prayer. To the extent that the lead opinion attempts to

defend its conclusion on Board Policy 5133.1, it is for this

reason bankrupt. The questions presented in this case

turn on no puny policy of a local school district; they are

controlled by a reconciliation of the various clauses of the

First Amendment and their state counterparts and noth-

ing less.

Yearbook advertisements do appear in official publica-

tions and, consequently, are subject to the very narrow

censorship right we recognized in Leeb. But nothing in

Education Code section 48907 authorizes the prior re-

straint of any expression, religious or otherwise, unless

it is obscene or defamatory or contains “material which

so incites students as to create a clear and present danger

of the commission of unlawful acts on school premises or

the violation of lawful school regulations or the substan-

tial disruption of the orderly operation of the school.”

This advertisement met none of those criteria.

25a

The district argues the advertisement would violate the

establishment of religion clauses of the federal and state

Constitutions. (U.S. Const., lst Amend.; Cal. Const., art.

1, § 4; see ante, fns. 2 and 3.) But even if this contention

were true (and I will conclude it is not), use of a prior

restraint to ban mere religious speech is not constitu-

tionally required; and it is specifically prohibited by Edu-

cation Code section 48907.

Section 48907 only allows the suppression of material

in official student publications which might incite others

to a violation of a law or regulation. Its literal language

does not include material which might itself offend some

law or regulations, unless it is obscene or defamatory.

High school students cannot transgress the establishment

clause; only governments can. Thus, insofar as a poten-

tial violation of the establishment clause formed the basis

for the censorship of the advertisement under the very

limited power to impose prior restraints granted in sec-

tion 48907, the district erred.

In denying publication of the advertisement, the Mis-

sion Viejo principal apparently believed it might create

the “clear and present danger” of an unauthorized on-

campus meeting of an off-campus club in violation of

Board Policy 5133.1.7. The contention is not tenable for

several reasons. The school administration had never

taken the position that New Life meetings violated any

policy of the district.* Moreover, “[m]ere speculation on

7 The same is true of the flyers. One of the two announced rea-

sons for their prohibition was the implied determination that they

might trigger an impermissible assemblage of an off-campus club:

The identically phrased rejection letters to petitioners stated, “In

that Board Policy 5133.1 is a ‘lawful school regulation,’ a student’s

exercise of free expression under Education Code Section 48907

would be inapplicable.” The second reason was the district’s claim

that permitting their distribution would offend the establishment

clause.

8 Education Code section 48907 can be read, however, to imply

a right to meet, discuss religion, and even to pray since it prohibits

26a

the part of the state that individuals might at some time

engage in illegal activity is insufficient to justify regula-

tion. [Citation.]” (San Diego Committee v. Governing

Bd. (9th Cir. 1986) 790 F.2d 1471, 1479 [high school

newspaper which accepted military recruitment advertise-

ments created a limited public forum and could not refuse

to publish a paid message submitted by an antidraft

group].) Also, the likelihood that an advertisement pub-

lished in a yearbook at the end of the school year might

have a significant impact on New Life attendance in the

present or ensuing term is remote at best. Finally, New

Life meetings were part of school life; there is no com-

pelling reason why they should not have been allowed a

small paid remembrance in the chronicle of the year’s

events.

In short, the yearbook ad did not fail within any of

the prohibited statutory categories. Its acceptance by the

student editor was the final word on the subject under

California law. (Ed. Code, § 48907; Leeb v. DeLong,

supra, at p. — [slip opn., p. 9]; ef. Hazelwood School

District v. Kuhlmeier, supra, US. .) Conse-

quently, the board’s policy, as it was applied here, abridged

Education Code section 48907’s guarantee of freedom of

student expression.

The first line of Board Policy 5133.1 prohibits the func-

tioning of off-campus or private clubs in the school. The

policy goes on to state, “They [off-campus and private

clubs] are also restricted from advertising in any form.” ®

interference with student speech whether or not the “means of

expression [is] supported . .. by use of school facilities.” The

constitutionality of such an interpretation is a question for another

day.

® This can only be understood as referring to on-campus adver-

tising. Read to ban off-campus advertising by off-campus clubs, the

policy would clearly be beyond the lawful mission of a public school

and repugnant to the First Amendment and article 1, section 2,

subdivision (a) of the California Constitution.

27a

I have no difficulty with a prohibition on outside organiza-

tions advertising on campus. A public high school is not

constitutionally compelled to operate as the equivalent of

a town square, so that nonstudents must be allowed to

communicate with the students on campus. (Cf. Robins v.

Pruneyard Shopping Center (1979) 23 Cal.3d 899, aff'd.

sub. nom. Pruneyard Shopping Center v. Robins (1980)

447 U.S. 74.)

Petitioners make no contrary argument. But they do

insist without serious contradiction that they have no club

membership at all, off-campus or otherwise, and are

merely unorganized groups of students who meet during

scheduled recesses. They also aptly note the district

classified them as a club merely because board policy

defines. club as groups who advertise.’°

Petitioners’ criticism of this portion of the policy is

well taken: Students who desire to advertise free-time

meetings may not be converted ipso facto into imper-

missible “clubs” based on that fact alone. As applied to

students of the school, such an interpretation of Board

Policy 5133.1 would hopelessly conflict with Education

Code section 48907: “Students of the public schools shall

have the right to exercise freedom of speech and of the

press including, but not limited to, the use of bulletin

boards, the distribution of printed materials [], ... and

the right of expression in official publications, whether or

net such publications or other means of expression are

supported financially by the school or by use of school

facilities ....” Using a “Through the Looking Glass”

technique of defining an exercise of the rights conferred

in Education Code section 48907 as an act of an off-

campus or private club, the district has, in effect, re-

10 The district played both sides of this particular street, and

petitioners now attempt to do the same. As noted above (see fn. 6),

Perumal and Read previously desired official club status; but the

district consistently refused to grant it.

28a

pealed a legislative enactment. This, of course, it may

not do.

Translated, school policy permits students to discuss

whatever they wish during the lunch period so long as

they do not announce the meetings in advance. Not sur-

prisingly, apart from establishment clause theory, the

district fails to cite any authority in support of its right

to formulate such a rule; and I have discovered none.

Was the district compelled by the establishment clauses

of the federal and state Constitutions to take the various

actions contested here despite the free press rights of the

students and the literal language of Education Code sec-

tion 48907? I think not.

The plight of the district and its elected trustees is

understandable. Beset by community pressure from ad-

vocates on both sides of the question, they have quite

properly sought to steer a course of strict neutrality to-

ward on-campus religious expression.’ If any guiding

principle has received general support in our highest

court, it is this: “[T]Jo withstand the strictures of the

Establishment Clause there must be a secular .. . pur-

pose and a primary effect that neither advances nor in-

hibits religion.” (School District of Abington TP., PA.

v. Schempp (1963) 374 U.S. 203, 222, emphasis added.)

And! the trustees were required to develop a policy in

the legal context of what former Chief Justice Burger

11T say “properly” because “strict neutrality” is one of. the

phrases most often used to describe the correct posture of a school

district toward religion in public schools. The idea is not without

cogent critics, however: “Paradoxically, the neutrality principle

not only requires hostility to religion at odds with the values of the

Free Exercise Clause, but also permits aid to religion in conflict

with values of the Establishment Clause.” (Choper, The Religion

Clauses of the First Amendment: Reconciling the Conflict (1980)

41 U.Pitt.L.Rev. 673, 689.)

29a

rather aptly labeled the Supreme Court’s “embarrassing

Establishment Clause jurisprudence. .. .” (Edwards Vv.

Aguillard (1987) 482 U.S. , [96 L.Ed.2d 510,

555] (dis. opn. of Burger, C.J.).)** Cases similar to the

present one have repeatedly confounded and sundered the

membership of that court, as an examination of the var-

ious opinions and authorities cited in Edwards will at-

test. (See also Choper, The Religion Clauses of the First

Amendment, supra, 41 U.Pitt.L.Rev. 673.)

Over the years courts have rejected numerous at-

tempts by public school students to conduct formal Bible

study and religious meetings on campus, usually deter-

mining the proposed student activity would impermissi-

bly engage the state with religion. But it is also beyond

eavil that “freedoms of speech and of press, of assembly,

and worship may . .. be infringed ... . only to prevent

grave and immediate danger to interests which the state

may lawfully protect.” (West Virginia State Board of

Education v. Barnette (1943) 319 U.S. 624, 639; see

also San Diego Committee v. Governing Bd., supra, 790

F.2d at p. 1478.) It is difficult to visualize purely stu-

dent produced handbills or yearbook advertisements of a

religious bent in terms of “grave and immediate danger.”

That sort of hysteria is generally reserved for the treat-

ment of religious questions behind the Iron Curtain. In

this country the state may not “lawfully protect” stu-

12 Dean Choper describes the Supreme Court’s establishment

clause as a “conceptual disaster area.” (Choper, The Establishment

Clause and Aid to Parochial Schools— An Update (1987) 75 Cal.

L.Rev. 5, 6.) In another article he pointedly comments on the

Supreme Court’s own indictment of its rulings on this subject:

“Indeed, in an unusually candid recent dictum, the Court forth-

rightly conceded that its approach in this area ‘sacrifices clarity and

predictability for flexibility’ [citing Committee for Pub. Educ. v.

Regan (1980) 444 U.S. 646, 662]—a euphemism, I suggest, for

expressly admitting the absence of any principled rationale for its

product.” (Choper, The Religion Clauses of the First Amendment,

supra, 41 U.Pitt.L.Rev. at p. 681.)

30a

dents from the free expression of their classmates un-

less, at a minimum, it presents a clear and present dan-

ger that the educational mission of the school might be

adversely affected. (Tinker v. Des Moines Independent

Com. Sch. Dist., supra, 393 U.S. 503.) No such extreme

situation exists here, of course.

The key to the establishment clause decisions as they

relate to public schools and student religious activity, if

there is one, appears to be this: Who has initiated and

sponsored that activity? If the state is the moving force,

the establishment clause is almost invariably held to be

offended. If the impetus is, as here, from the students

themselves, or their parents perhaps, and the taxpayers’

facilities are not unduly or unusually utilized, other

First Amendment vaiues may win out.” (See, eg., 20

U.S.C. § 4071.)

Indeed, one commentator has noted, “The claim for

some religious activity in the public schools is truly.

forceful only in the free speech claims of those seeking

to engage in their own religious practices without gov-

ernmental ieadership. Even then, however, the claim is

convincing only where the state allows, or is compelled

13 Examples of impermissible state action designed to promote

religion are the following: Edwards v. Aguillard, supra, 482 U.S.

[96 L.Ed.2d 510] [statute required teaching of “creation

science” if school elected to teach theory of evolution]; Grand

Rapids School Dist. v. Ball (1985) 473 U.S. 373 [use of public

school teachers to instruct parochial school pupils in nonpublic

school classrooms “leased” to the school district]; Wallace v. Jaffree

(1985) 472 U.S. 38 [use of religious school teachers in public

schools|; Stone v. Graham (1980) 449 U.S. 39 [required posting

of Ten Commandments in public classroom]; Epperson v. Arkansas

(1968) 393 U.S. 97 [teaching of evolution forbidden by statute];

School District of Abington TP., PA. v. Schempp, supra, 374 U.S.

203 [requirement that school day begin with Bible readings] ;

Engel v. Vitale (1962) 370 U.S. 421 [recitation of prayer in class-

room]; Illinois ex. rel McCollum v. Board of Education (1948) 333

U.S. 203 [use of religious school teachers in public school curriculum

30 minutes each week}.

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3la

to allow, comparable non-religious speech to be exercised.

In such cases, denial of the right of a religious group to

speak constitutes content-based discrimination and would

be subject to first amendment (speech) and equal pro-

tection scrutiny.” (Marshall, “We Know It When We See

It’[:] The Supreme Court and Establishment (1986)

59 So.Cal.L.Rev. 495, 543, fn. omitted; see also Choper,

The Religion Clauses of the First Amendment, supra, 41

U.Pitt.L.Rev. at p. 686, fn. omitted [“The Court’s ap-

parent inconsistency may be rationalized by concluding

that its Establishment Clause principles simply give way

in the face of a serious (or even arguably substantial)

Free Exercise Clause claim.”].) Tinker v. Des Moines

Independent Com. Sch. Dist., supra, 393 U.S. 503 and

Education Code section 48907 compel the district to per-

mit distribution of student generated flyers, and the

Mission Viejo High School’s administration allowed the

yearbook to accept commercial advertisements. Thus,

both of Professor Marshall’s conditions are satisfied in

this case. Petitioners’ “serious” free exercise argument

meets Dean Choper’s test as well.

Zorach v. Clauson, supra, 343 U.S. 306 is an impor-

tant illustration of a permissible school regulation which

attempted to accommodate student and parent initiated

religious exercises. There the Supreme Court approved

a New York City program permitting public schools to

release students to attend religious instruction or serv-

ices. Although the facts are not directly on point, the

court’s language appears to be: “We sponsor an at-

titude on the part of government that shows no partiality

to any one group and that lets each flourish according

to the zeal of its adherents and the appeal of its dogma.

When the state encourages religious instruction or co-

operates with religious authorities by adjusting the

schedule of public events to sectarian needs, it follows

the best of our traditions. For it then respects the re-

ligious nature of our people and accommodates the public

32a

service to their spiritual needs. To hold that it may

not would be to find in the Constitution a requirement

that the government show a callous indifference to re-

ligious groups. That would be preferring those who be-

lieve in no religion over those who do believe. Govern-

ment may not finance religious groups nor undertake re-

ligious instruction nor blend secular and sectarian edu-

cation nor use secular institutions to force one or some

religion on any person. But we find no constitutional

requirement which makes it necessary for government

to be hostile to religion and to throw its weight against

efforts to widen the effective scope of religious influence.”

(Id., at pp. 313-314.) Nor do I.

Zorach is hardly unique in establishment clause juris-

prudence. The Supreme Court has frequently upheld

laws against such attacks, even where the state has gone

beyond accommodation to the point of financial assist-

ance. (Hobbie v. Unemployment Appeals Commission

(1987) 480 USS. (94 L.Ed.2d 190]; Witters v.

Washington Dept. of Serv. for the Blind (1986) 474

U.S. 481; Lynch v. Donnelly (1984) 465 U.S. 668; Wid-

mar Vv. Vincent, supra, 454 U.S. 263; Thomas v. Review

Bd. of Indiana Employment Sec. (1981) 450 U.S. 707;

Wisconsin v. Yoder (1972) 406 U.S. 205; Walz v. Tax

Commission of City of New York (1970) 397 U.S. 664;

Board of Ed. of Cent. Sch. Dist. No. 1 v. Allen (1968)

392 U.S. 236; Sherbert v. Verner (1963) 374 U.S. 398;

McGowan Vv. Maryland (1961) 336 U.S. 420; Everson v.

Board of Education of Ewing TP. (1947) 330 U.S. 1.)

I am, of course, aware the present case falls some-

where between Zorach and those in which religious train-

ing was imported into public school classrooms. Here,

the flyers were to be distributed in common areas on

school grounds during student free time and the adver-

tisement was to appear in a section of the high school

yearbook devoted to paid announcements. It cannot fairly

be said that either mode of expression was under the

CS TT, - Sl RM,

33a

supervision or sponsorship of the school in any real sense,

however. The flyers were published by students, and the

advertisement was written by a student for placement

in a portion of the yearbook that belonged to him as pay-

ment for services as a member of its staff and accepted

for publication by the student editor.

The correct interpretation of Zorach is this: It is

“the combination of classroom and mandatory instruc-

tion which was held to be constitutionally impermissible

{in Illinois ex rel. McCollum v. Board of Education,

supra, 333 U.S. 203], the implication being, if accommo-

dation only was involved, that religious activity could

permissibly occur on the school grounds.” (Johnson Vv.

Huntington Beach Union High Sch. Dist., supra, 68

Cal.App.3d at p. 22 (dis. opn. of McDaniel, J.).) One

of the leading scholars in the field, Jesse H. Choper, cur-

rently Dean of the School of Law at the University of

California at Berkeley (Boalt Hall) came to the same

conclusion years ago. (Choper, Religion in the Schools:

A Proposed Constitutional Standard (1963) 47 Minn.L.

Rev. 329, 351-355. )

No discussion of establishment clause problems can be

complete without reference to Lemon v. Kurtzman (1971)

403 U.S. 602. There, the United States Supreme Court

created a tripartite test to deal with establishment clause

issues. Although it has been frequently criticized by dis-

senters, the “test has been applied in all cases since its

adoption in 1971, except in Marsh v. Chambers, 463 U.S.

783, 77 L.Ed.2d 1019, 103 S.Ct. 3330 (1983), where the

Court held that the Nebraska legislature’s practice of

opening a session with a prayer by a chaplain paid by

the State did not violate the Establishment Clause. The

Court based its conclusion in that case on the historical

acceptance of the practice. Such a historical approach is

not useful in determining the proper roles of church and

state in public school, since free public education was

virtually nonexistent at the time the Constitution was

34a

adopted. [{Citations.]” Edwards v. Aguillard, supra, 482

U.S. at p. —, fn. 4 [96 L.Ed.2d at pp. 518-519].)

State action, per Lemon, violates the establishment

clause if it fails to satisfy any of three conditions: It

“must have a secular [] purpose[,] ... its... primary

effect must [] neither advance[] nor inhibit[] religion,

[and it] must not foster ‘an excessive government en-

tanglement with religion.’” (Lemon v. Kurtzman, supra,

403 U.S. at pp. 612-613.) This test should not be viewed

as an absolute, however, “but as a touchstone with which

to identify instances where the objectives of the estab-

lishment clause have been compromised. [Citation.]”

(Johnson v. Huntington Beach Union High Sch. Dist.,

supra, 68 Cal.App.3d at p. 11.) The goal of the estab-

lishment clause is “to protect against . . . ‘sponsorship,

financial support, and active involvement of the sovereign

in religious activity.’ [Citations.]” (/bid.)

The actions taken here violate the first two Lemon

conditions, apparently in an effort to comply with the

third. The district’s motives in suppressing the flyers and

the advertisement were obviously calculated to restrain

petitioners’ on-campus religious expression, and there can

be no doubt its actions accomplished precisely that. The

district argues it had a secular purpose, of course; but

at the same time it now defends its decisions in part, as

it did previously, on the basis they were necessary to

avoid entanglement with religion. These contentions are

hopelessly inconsistent in my view.

Nonetheless, assuming no violation of the first two

Lemon conditions for the sake of argument, I address the

“entanglement” claim in light of petitioners’ statutory

and state constitutional freedom to publish. The district

continues to rely on Johnson, the case cited in the princi-

pal’s letters denying circulation of the flyers. The present

facts are considerably different, however. There, a stu-

dent group petitioned for permission to form an official

school sponsored Bible club, requesting use of educational

mibidinbnieen eee ees

35a

facilities and supervision. Employing the Lemon test, the

majority of the cvurt concluded operation of the club

would advance religion. Noting “the exercise of the power

to permit student organizations to conduct their activities

on school campuses during the school day in accordance

with district rules and regulations is in the abstract

secular in nature,” the court nevertheless concluded the

financial subsidy received by the group in the form of

classroom space, heat, light, and a faculty sponsor might

be sufficient in itself “to compel constitutional condemna-

tion of the requested state action.” (/d., at p. 12.)

But the Johnson opinion was not based simply on the

provision of financial aid. (/bid.) The court was also

greatly concerned that the district would be placing “its

imprimatur upon the religious activity. |[Citations.|”’

(Id., at p. 13.) The court added, “it is in the foregoing

respect that permitting [the] Bible study club to meet

and [to] operate on the school campus during the school

day most offends establishment principles. Under the

district’s rules and regulations, the club will become an

entity ‘sponsored by the school’ and as such will be en-

titled to use the school name in connection with its activi-

ties, to free use of the school premises and property. to

access to the school newspaper and school posting facili-

ties to advertise its activities, and to solicit contributions

on campus during the school day. Thus, the consequence

of permitting the club to operate on campus as a recog-

nized student organization is to place school support and

sponsorship behind the religious objectives of the club.

The Bible study club would implicitly become an integral

part of the school’s extracurricular program conducted

during the school day when students are compelled by law

to attend the school.” (/bid., fn. omitted, emphasis added. )

The court concluded the club’s activities would lead to

excessive involvement with religion and could create a

“potential for divisiveness” among the students in their

religious beliefs: “[{TJhere is a real possibility that com-

peting sects or beliefs will vie for school permission to

36a

operate on campus. Manifestly this could engender stu-

dent divisiveness in matters of religious beliefs.” (Jd., at

p. 14.)

Our facts are dissimilar, of course. Here we deal only

with innocuous and inoffensive writings no student is re-

quired to read. The modern high schooler has been

besieged from birth with commercial and religious ad-

vertisements of all kinds. Television, radio, and news-

papers inundate our youth with such material day and

night, along with major doses of sleazy sex and gruesome

violence. Even the most gullible high school student must

have been thoroughly desensitized long ago to a media

deluge that is heavily directed to influencing youthful

thinking—and spending. Against the backdrop of these

realities, the rights of these petitioners to say what they

will, in my view, far outweigh the minor inconvenience

to fellow students not interested in their message. The

latter need only refuse an unwanted flyer or drop it in

the trash.

The majority’s belief that government officials can

prevent a student from handing a piece of paper to

another student during a recess simply based on the

allegedly religious nature of the words it contains is

without precedent, principled logic, or any serious con-

stitutional justification. It would permit government

agents, educators at that, to assume the role of “ ‘thought

police’ stifling discussion of all but state-approved topics

and advocacy of all but the official position.” (Hazelwood

School District v. Kuhlmeier, supra, USS. '

—— |slip opn., p. 17] (dis. opn. of Brennan, J.).)

Not only does the district have no business inquiring

into the content of such materials, despite the limited

right to regulate the time, place, and manner of their

distribution to prevent interference with its legitimate

educational objectives, the district has absolutely no mis-

sion to secularize the thinking or expression of its

charges. To the contrary, our law, inconsistent as it

‘siceansiiiliiaiaialialaiais acai

Oe pada TA Or Be

37a

has been in this area, has almost always sought to ac-

commodate the religious expression of its citizens in the

multitude of arenas in which the government must also

appear; and this has been true even in the public schools.

When students refuse to participate in the flag salute

for religious reasons, the school must tolerate this view-

point in the classroom. (West Virginia State Board of

Education v. Barnette, supra, 319 U.S. 624.) The state

must even tolerate the religious heritage of students to

the extreme of excusing them from compulsory attend-

ance. (Wisconsin v. Yoder, supra, 406 U.S. 205.) The

correct principle is this: “[T]he Establishment Clause

should forbid only government action whose purpose is

solely religious and that is likely to impair freedom by

coercing, compromising, or influencing religious beliefs.”

(Choper, “The Religion Clauses of the First Amend-

ment,” supra, 41 U.Pitt.L.Rev. at p. 675.) Here, of

course, the only government action invelved was ob-

viously directed toward the impermissible goal of pre-

venting student religious expression.

Since my colleagues’ holding with respect to the flyers

is so wide of the constitutional mark, despite giving

the matter considerable research, thought, and study,

those without similar luxuries are likely to be even more

confused. For the benefit of the public at large, and

even the usual audience of attorneys and judges, I be-

lieve it may be instructive to strip the matter of its legal

patina and briefly digress into a few simple illustrations

of the grievous error the majority commits today.

Suppose a solitary 18-year-old high school student eat-

ing his lunchtime apple under a schoolyard oak. Inspired,

for whatever reason, our imaginary scholar has a pass-

ing religious thought just as the principal walks by.

Good thought policeman that he is, our hypothetical ad-

ministrator reads the student’s mind and, horrified that

school premises are being used for religious purposes,

expels the contemplative lad. Lawful? Of course not.

38a

The next day, another 18-year-old student previously

unknown to the first sits beside him and begins his lunch.

A discussion ensues concerning the same religious idea.

The principal overhears this conversation and, horrified

again, expels one or both of the students. Lawful? Of

course not.

On the third day, the students are more careful. Now

they communicate by hastily scrawled notes containing

biblical passages which they merely show to each other

but do not physically transfer. They are expelled. Is this

lawful? Obviously not.

On the fourth day, our scholars pass their notes back

and fourth. May they be punished for that? Of course

not.

On the fifth day, they are less secretive. They allow

passing students to satisfy their curiosity by reading the

notes over their shoulders. Is this grounds for discipline?

The idea is ludicrous.

On the sixth day, the students leave copies of the

notes under the tree while they consume their lunch.

Other students help themselves to the copies. The prin-

cipal expels everyone who takes one and, of course, our

two imaginary students. The action is clearly improper.

On the seventh day, there is no rest. Buoyed by their

success in defeating the principal in six consecutive man-

date proceedings, our pious scholars pass out flyers dur-

ing recess inviting others to meet them under the tree at

lunch, which flyers also contain a quotation from the

Bible. Every student who receives one is greatly offended

and is put to the inconvenience of depositing the flyer

in a waste container in order to comply with campus

litter regulations. The principal has had enough. This

time he orders the students to stop what they are doing,

although he can find nothing wrong with the time, place,

and manner of their activity. Can he do this? The ma-

jority says, “Yes.” The Constitution (and I) say, “No.”

Pee Se ta

a Al li oe 0 oat A ala cn aati ae

ee ee ee er

39a

Of course, I realize that another 30 days worth of

examples might bring us to a full-blown religious service

as a daily requirement for all students. A line certainly

does exist beyond which petitioners and the district may

not pass; but that line is to be drawn at the exact point,

although it may not always be easy to find, where the

district lends its support, moral or material, to students

seeking to promote religious expression, not where the

majority draws it today. The line might even be drawn

where students seek to distribute material generated by

non-students, such as the Bible, the Koran, the Book of

Mormon, Dianetics, Watchtower, or any other revealed

truth or tract produced by outside religious organiza-

tions. I regard that as an exceedingly close question,

but the one before us today is very much different.

As to the yearbook, its advertisement section contains

messages from a major real estate developer, bicycle

shop, attorney, hair salon, pet store, ice cream parlor,

florist, chiropractor featuring acupressure, orthodonist,

auto insurance company, and several student groups that

look suspiciously like off-campus clubs, among a number

of others..* The school district obviously endorses none

of these businesses or organizations merely because their

messages appear in the book. I cannot imagine who but

the most virulent anti-religionist could be offended by the

inclusion of a New Life ad among such material.

There are also several reasonable options for someone

who might find New Life material offensive. The year-

book is hardly required reading; no one has to order

the book or retain it if he does. Disfavored pages may

be ignored. Nor is it even necessary to retain a page

containing any particular advertisement. The ads are

all grouped in one section, and any or all could be quickly

excised without affecting the remainder of the book.

14 We required augmentation of the record on our own motion

to include a copy of the yearbook in its final form. (Code Civ.

Proc., § 909.) Neither side accepted our invitation to file an objec-

tion to the order, if any it had.

40a

Thus, the yearbook is wholly dissimilar to other activ-

ties in which religion is foisted on a captive audience

under circumstances where the school might be perceived

to sponsor its introduction. (See, e.g., Bennett v. Liver-

more Unified School Dist. (1987) 193 Cal.App.3d 1012

and Collins v. Chandler Unified School Dist. (9th Cir.

1981) 644 F.2d 759, cert. den. sub. nom. Chandler Uni-

fied School Dist. v. Collins, 454 U.S. 863 [not proper

to open assemblies with prayer where such gatherings

were part of major school functions requiring faculty

supervision and school facilities].)

Moreover, while the yearbook is a limited forum, its

advertising section is a public forum because commercial

speech has been allowed entry. (Leeb v. DeLong, supra,

Cal.App.3d at pp. —-— [slip opn., pp. 11-12];

Pines v. Tomson (1984) 160 Cal.App.3d 370; San Diego

Committee v. Governing Bd., supra, 790 F.2d at pp. 1476-

1478). Religious worship and discussion are “forms of

speech and association protected by the First Amend-

ment” (Widmar v. Vincent, supra, 454 U.S. at p. 269),

and they may be treated no less. (see 20 U.S.C. § 4071

and Laguna Publishing Co. v. Golden Rain Foundation

(1982) 131 Cal.App.3d 816, 841 [discriminatory limita-

tions on free speech on public property not permissible]. )

In Widmar the United States Supreme Court flatly re-

jected the notion “that ‘religious worship’ is not speech

generally protected by the ‘free speech’ guarantee of the

First Amendment and the ‘equal protection’ guarantee

of the Fourteenth Amendment.” (Widmar v. Vincent,

supra, 454 U.S. at p. 274, fn. 6.)

I am mindful that the United States Supreme Court

“has been particularly vigilant in monitoring compli-

ance with the Establishment Clause in elementary and

secondary schools. Families entrust public schools with

the education of their children, but condition their trust

on the understanding that the classroom will not pur-

posely be used to advance religious views that may con-

flict with the private beliefs of the student and his or

Ke ly, Pade rene PRR a eel it i en calle \

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5 initia sey aa es i Sa elt es iA Ta aS A AN tt NT a se

4la

her family. Students in such institutions are impression-

able and their attendance is involuntary. [Citations.]”

(Edwards v. Aguillard, supra, 482 U.S. at p. — [96

L.Ed.2d at p. 519].)

Nonetheless, as many parents learn to their delight or

despair, depending on the perceived qualities of their

offspring’s friends, it is impossible to isolate students

from one another. Here, it is not the district who seeks

to influence its charges, but fellow students.” And the

latter enjoy constitutional freedoms the district does not.

In summary, few of the dangers carefully catalogued

in Johnson Vv. Huntington Beach Union High Sch. Dist.,

supra, 68 Cal.App.3d 1 are present here. The flyers re-

quired no financial subsidy of any kind. The yearbook

ad was purchased by petitioner Read through his own

labor on the journal’s staff. Moreover, a school does not

impliedly approve the content of privately produced flyers

or advertisements by simply failing to ban their publica-

tion. If the administration is truly troubled by such con-

cerns, it is perfectly free to announce that the law compels

student expression on campus within the limits of Edu-

cation Code section 48907 and that no endorsement of

such expression is to be inferred by its compliance with

the law. A disclaimer in that vein may also be published

in official school publications. (Hazelwood School District

Vv. Kuhlmeier, supra, U.S. at [slip opn., p. 13]

(dis. opn. of Brennan, J.) [The administration, too, must

be permitted access to its own forum.]) In other words,

the solution, as it generally is in free speech matters, is

not to restrain expression but to answer speech with

more speech. |

15“ *T Allthough “you send your child to the schoolmaster .

’tis the schoolboys who educate him.” [Emerson, The Conduct of

Life (1860) at p. 123.]’” (Choper, Religion in the Schools, supra,

47 Minn.L.Rev. at p. 416, fn. omitted.) Although Dean Choper

would not allow the state to “engage” in religion in the schools

under his proposed constitutional standard, his definition of “state”

does not include the students themselves. (/d., at pp. 330-331,

fn. 6.)

42a

Unlike the situation in Johnson, these petitioners sought

no official recognition of the New Life discussions in the

proceeding below. (See fns. 6 and 10, ante.) They did

not request use of the schools’ names, other than to

identify the location of their meetings; nor did they pur-

sue free reign on the school’s premises.

Tinker v. Des Moines Independent Com. Sch. Dist.,

supra, 393 U.S. 503 provides them solid support. In

Tinker students protesting the Vietnam War donned

black armbands in direct violation of school policy and

were suspended until they agreed to remove this apparel.

The Supreme Court concluded the school restriction vio-

lated the students’ constitutional rights to free expression,

“at least if it could not be justified by a showing that the

students’ activities would materially and substantially

disrupt the work and discipline of the school. [Cita-

tions.]”’ (Id., at p. 513.) The court found the school failed

to make such a showing.

Certainly, had the school acted oniehanped in Tinker it

could not have been accused of endorsing student opposi-

tion to the Vietnam War by implication. A similar ill-

conceived viewpoint motivated the distritt here, a view-

point which either misconstrued a difficult legal point or

unnecessarily underestimated the sophistication and in-

telligence of the typical high school student who “should

be able to appreciate that the [school’s] policy is one of

neutrality toward religion.” (Widmar v. Vincent, supra,

454 U.S. 263, 276.) It is at least as important that our

schools be politically neutral as it is that they be neutral

toward religion, yet Tinker protected student political

expression of the most controversial sort.

Finally, I am not convinced that the mere distribution

of a flyer will lead to student “divisiveness,” one of the

Johnson decision’s concerns. The district admits the

lunchtime discussions have never caused any disturbance.

How could their mere announcement? Should such “di-

visiveness” in fact surface, however, the schoo] district

tould seek to justify the use of censorship at that time,

43a

for then it might legitimately claim religion had inter-

fered with the educational mission of the school. Until

then it should tolerate the students’ right to free thought

and expression.

Similarly, there is no evidence the yearbook advertise-

ment or the flyer would materially interfere with the

operation of the school or the rights of other students.

Nothing in the record suggests students harboring dif-

ferent or opposing viewpoints are, or will be, vexed in

any way. In fact, “[t]here is here no evidence whatever

of [the student’s] interference, actual or nascent, with

the schools’ work or of collision with the rights of other

students to be secure and to be let alone. Accordingly, this

case does not concern speech or action that intrudes upon

the work of the schools or the rights of other students.”

(Tinker v. Des Moines Independent Com. Sch. Dist.,

supra, 393 U.S. at p. 508.) **

Moreover, “in our system, undifferentiated fear or ap-

prehension of disturbance is not enough to overcome the

right to freedom of expression. Any departure from ab-

solute regimentation may cause trouble. Any variation

from the majority’s opinion may inspire fear. Any word

spoken, in class, in the lunchroom, or on the campus, that

deviates from the views of another may start an argument

or cause a disturbance. But our Constitution says we

must take this risk .. . and our history says that it is

this sort of hazardous freedom—this kind of openness—

that is the basis of our national strength... .” (Jbid.)

Religious speech is entitled to no less forbearance.”

16 The school board would, perhaps, be further annoyed by the

regeneration of strong community feelings over the matter; but

that is hardly a reason to stifle student expression. Elected officials

must suffer such difficulties as part of the job; and, in any event,

the blame is not, or would not be, attributable to them in this case.

17One of the more astute passages I have encountered in the

literature on the general subject before us is the following: “With

all due respect to the adversaries, the church-state issues that

44a

The bigotry involved in the suppression of purely pri-

vate student religious expression cannot be reconciled

with any of the clauses of the First Amendment. It is

as offensive to the establishment clause as any of them.

The majority does not bar entry of the camel’s nose of

religion into a public institution by today’s decision.

New Life meetings presumably go on. But the majority

does allow the whole camel to intrude into the students’

tent of free expression. I would reverse and order a

writ to issue consistent with the views expressed above.

CROSBY, J.

have roiled the courts and the nation have not been earth-shaking

matters. They are worrisome only for the same reason that it is

desirable to keep the camel’s nose outside the tent. But behind the

petty quarrels there is a fundamentally important principle at stake,

which cannot be too often compromised without being lost. What

is at venture in the cases denominated church and state are_not

the picayune governmental expenditures or religious blasphemies

involved in state sponsored religious symbols or school prayers.

What is at issue is nothing less than preserving the freedom of

the individual mind. The preservation of that freedom is the

reason behind the first amendment, not only its religion clauses

but its speech and press and petition and assemby provisions as

well. And in this area, the greatest danger lies in the attempts by

adults, who have closed their own minds, to close the minds of

others, especially children, through the instruments of govern-

ment sanctions. Of course, the young are the most vulnerable to

indoctrination. But the histories of every European nation, some

well into the twentieth century, and not excluding England, have

taught us that it is not only the young who are vulnerable to the

coercion of religious bigotry. [%] It is the constitutional objective

of freedom of the mind that should inform the construction of the

application of the constitutional provisions that come before the

Court. Principled decisions, not what Mr. Justice Schaefer used

to call ‘pots and pans jurisprudence,’ must be its guide.” (Kurland,

Religion and the Constitution: “Eternal Hostility Against Every

Form of Tyranny Over the Mind of Man” (1987) 20 U.C.Davis

L.Rev. 705, 717.)

Se ae ay ad

1 RIE i eee aly 906.20 Ti

45a

IN THE COURT OF APPEAL OF

THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

G003181

(Super. Ct. No. 45-78-95)

ALEXANDER PERUMAL and FREDERICK RUSSELL READ,

a Minor, etc.,

Appellants,

SADDLEBACK VALLEY UNIFIED SCHOOL DISTRICT et al.,

Respondents.

ORDER MODIFYING DISSENTING OPINION

[Filed Feb. 19, 1988]

The dissenting opinion in the above-entitled matter,

filed and certified for publication on January 29, 1988, is

ordered modified as follows:

(1) On page 14 of the slip opinion, line 10, “(dis. opn.

of Burger, C.J.).)” is deleted and “(dis. opn. of Scalia,

J.).)” is substituted in its place.

(2) On page 25 of the slip opinion, line 7, the follow-

ing sentence is inserted after the sentence which ends,

“at p. 675.)”: “This principle should be fully applicable

in public schools. (Choper, Church, State and the Supreme

Court: Current Controversy (1987) 29 Ariz.L.Rev. 551,

554-556. )”

CRossy, J.

46a

IN THE COURT OF APPEAL OF

THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

G003181

(Super. Ct. No. 45-78-95)

ALEXANDER PERUMAL and FREDERICK RUSSELL READ,

a Minor, etc.,

Appellants,

Vv.

SADDLEBACK VALLEY UNIFIED SCHOOL DISTRICT et al.,

Respondents.

ORDER MODIFYING DISSENTING OPINION

[Filed Feb. 29, 1988]

The dissenting opinion in the above-entitled matter,

filed and certified for publication on January 29, 1988,

is ordered modified as follows:

(1) On page 14 of the slip opinion, line 7, “Justice

Scalia and” is inserted immediately before “Chief Justice

Burger”.

Crossy, J.

47a

APPENDIX B

COURT OF APPEAL—STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

1 Division Three

Office of the County Clerk

Orange County

700 Civie Cntr. Dr. West

Santa Ana, CA. 92701

RE: PERUMAL, ALEXANDER

Vv.

ee ee |

SADDLEBACK VALLEY UNIFIED SCHOOL DIST.

G003181

Orange County No. 457895

REMITTITUR

I, Stephen M. Kelly, Acting Clerk of the Court of Ap-

peal For the State of California, for the Fourth Appellate

District, certify the attached is a true and correct copy of

the original opinion or decision entered in the above-

entitled cause on January 29, 1988, and that this opinion

or decision has now become final.

—— Appellant X Respondent to recover costs.

Each party to bear own costs.

—— Costs are not awarded in this proceeding.

Witness my hand and the seal of the court affixed this

) May 18, 1988.

[SEAL]

; By: /s/ William Hyman

Deputy Clerk

ec: All Counsel (Copy of remittitur only, California Rules

of Court, rule 25(e) ).

48a

APPENDIX C

IN THE SUPREME COURT OF

THE STATE OF CALIFORNIA

IN BANK

PERUMAL et al., Minors, ete.

SADDLEBACK VALLEY UNITED SCHOOL DISTRICT et al.

ORDER DENYING REVIEW

AFTER JUDGMENT BY THE COURT OF APPEAL

4th District, Division 3, No G003181

$004753

[Filed Apr. 27, 1988]

Appellants’ petition for review is DENIED.

Broussard, J. is of the opinion the petition should be

granted.

/s/ LUCAS

Chief Justice

49a

APPENDIX D

IN THE SUPERIOR COURT OF

THE STATE OF CALIFORNIA IN AND FOR

THE COUNTY OF ORANGE

Dept. 25

Court convened at 4:00 P.M. July 1, 1985, present Hon.

PHILIP E. SCHWAB, Judge; Arturo E. Guevara, Deputy

Clerk; None, Deputy Sheriff; None, Reporter; and the

following proceedings were had:

45-78-95 PERUMAL, ET AL. vs. SADDLEBACK VALLEY UNION

SCHOOL Dist. No appearances. This matter having previ-

ously on June 24, 1985 been taken under submission rules

as follows: Petition for Writ of Mandate damages and

attorney fees denied. Each party to bear their own costs

ENTERED 7-1-85

50a

APPENDIX E

SUPREME COURT OF THE UNITED STATES

No. A88-48

ALEXANDER PERUMAL, et al.,

Applicants

SADDLEBACK VALLEY SCHOOL DISTRICT, et al.

ORDER

UPON CONSIDERATION of the application of coun-

sel for the applicants,

IT IS ORDERED that the time for filing a petition

for writ of certiorari and/or for docketing an appeal! in

the above-entitled case be, and the same is hereby, ex-

tended to and including August 25, 1988.

/s/ Sandra D. O’Connor

Associate Justice of the

Supreme Court of the

United States

Dated this 21st day of July, 1988.

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APPENDIX F

RELEVANT STATUTORY PROVISIONS

AND SCHOOL BOARD POLICIES

The State of California Education Code, § 48907 pro-

vides in relevant part:

Students of the public schools shall have the right to

exercise freedom of speech and of the press including,

but not limited to, the use of bulletin boards, the distri-

bution of printed materials or petitions . . . and the

right of expression in official publications, whether or

not such publications or other means of expression are

supported financially by the school or by use of school

facilities....

Saddleback Valley Unified School District Board Policy

Nos. 5145.3 & 6144.1 provide, in relevant part:

Right of Free Expression

Students of the District shall have the right to exer-

cise free expression including, but not limited to, the use

of bulletin boards, the distribution of printed materials

or petitions, and the wearing of buttons, badges, and

other insignia.

Circulation of Petitions, Circulars, Newspapers, and

Other Printed Matter Not Published Under School Au-

thority

Students shall be allowed to distribute petitions, cir-

culars, leaflets, newspapers, and other printed matter sub-

ject to the following specific limitations:

Manner—the manner of distribution shall be such that:

1. No materials included in this section may be dis-

tributed in the classrooms, nor in such a manner as to

disrupt the period between classes, and must be dis-

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tributed before school, during snack, lunch, and after

school.

2. Coercion is not used to induce students to accept

the printed matter or to sign petitions.

3. Funds or donations are not collected or solicited on

campus for materials distributed.

4. Leaflets and printed materials to be distributed

shall be submitted to the Principal, or his designee, at

least 24 hours prior to such distribution. Approval or

disapproval of such distribution shall be indicated as soon

as reasonably possible, and not later than the same time

the next school day. The official may limit the number

of students who may distribute materials in any one

day.

5. Materials shall not be left undistributed or stacked

for pickup at any place in the school or on school grounds

without permission of the Principal or his designee.

Prohibited Materials

In the exercise of student rights descriptions [sic]

above, no student shall distribute materials, wear buttons

or other displays, nor post notices or other materials

which:

1. Are obscene to minors according to current legal

definitions.

2. Are libelous or slanderous according to current le-

gal definitions.

3. Incite students so as to create a clear and present

danger of the imminent commission of unlawful acts on

school premises or the violation of lawful school regula-

tions or the substantial disruption of the orderly opera-

tion of the school.

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58a

4. Are distributed in violation of the time, place, and

manner requirements.

Rules and Regulations

The designated local school administrator shall develop

administrative rules and regulations to implement this

policy in conjunction with student government represen-

tatives. In case of a disagreement, the decision of the

designated administrator shall be final.

Saddleback Valley Unified School District (SVUSD)

Board Policy No. 5133.1 provides, in relevant part:

No off-campus or private clubs are permitted to func-

tion in the school. They are also restricted from adver-

tising in any form.

The only clubs and organizations which may use school

facilities during the school day are those which are school

sponsored. The school day includes nonclassroom time.

Saddleback Valley Unified School District (SVUSD)

Administrative Regulation 5133.1 provides, in relevant

part:

3. Freedom of Expression

Nothing in Board Policy 5133.1 nor Administrative

Regulation 5133.1 shall be construed to be in opposition

to students’ rights of freedom or expression as specified

in Education Code Section 48916 [sic] or Board Policy

5145.3 and 6144.1.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.