Opposition Brief — Perumal v. Saddleback Valley Unified School District

2)

No. 88-340

In The

Supreme Court of the United States

October Term, 1988

co)

ALEXANDER PERUMAL, et al.,

Plaintiffs and Petitioners,

vo

SADDLEBACK VALLEY UNIFIED

SCHOOL DISTRICT, e¢ al.,

Defendants and Respondents.

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RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI TO THE

CALIFORNIA COURT OF APPEAL

o

Davin C. Larsen*

Patrick K. RarFrerty

Rutan & TuckKER

611 Anton Blvd., Suite 1400

Costa Mesa, CA 92626

(714) 641-5100

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

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QUESTIONS PRESENTED

1. Whether a public high schoo] must permit an off-

campus, private religious club composed of students to ad-

vertise on campus during the instructional day meetings of

a religious nature io be held during the instructional day,

despite the school district’s policy of excluding operation

and advertising by all clubs and organizations which are

not school-sponsored and related to the school district’s

curriculum?

2. Whether the establishment clause of the First

Amendment is violated if a school district allows high

school students on a high school campus during the com-

pulsory instructional day to proselytize and advertise

prayer and Bible study meetings by distributing religious

literature?

‘i

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED at

TABLE OF AUTHORITIES ill

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI TO THE

CALIFORNIA COURT OF APrmeean 2.2... 1

OPINIONS BELOW 2s ys

JURISDICTION 0... eee 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS 3 .W.W.ckie eee 2

STATEMENT OF THE CABS ee 3

SUMMARY OF ABGUEREA: 2... 11

ARGUMENT ccc 12

I. THE SCHOOL DISTRICT’S DECISION TO

LIMIT STUDENT CLUBS AND ORGANIZA-

TIONS WHICH OPERATE AND ADVER-

TISE DURING THE INSTRUCTIONAL DAY

TO THOSE THAT ARE SCHOOL-SPON-

SORED AND CURRICULUM-RELATED IS

CONSISTENT WITH THIS COURT’S FIRST

AMENDMENT FORUM ANALYSIS ....WWW.. 12

Il. THE SCHOOL’S PROHIBITION ON ADVER-

TISEMENTS BY OFF-CAMPUS AND PRI-

VATE CLUBS IS NOT OVERBROAD OR

VAGUS ....scceeee sisidlabbenlbe =

Ill. POTENTIAL VIOLATION OF THE ESTAB-

LISHMENT CLAUSE OF THE U.S. CONSTI-

TUTION AND OF THE CALIFORNIA CON-

STITUTION PROVIDES A COMPELLING

STATE INTEREST WITH RESPECT TO

THE ADVERTISEMENTS IN QUESTION IN

THES CARRE a iniicccnccdcccce 22

IV. CONCLUBIOR ..W....2.4.e 26

APPENDIX A—Relevant Statutory Provisions ........ App. 1

APPENDIX B—Relevant School Board Poliey and

Administrative Regulation

lil

TABLE OF AUTHORITIES

Page(s)

CasEs

Bancroft-Whitney Co. v. McHugh, 166 Cal. 140 (1913) 9

Baughman v. Freienmuth, 478 F. 2d 1345 (4th Cir.

1973)

Bell v. Inttle Axe Independent School District

No. 70, 766 F. 2d 1391 (10th Cir. 1985) 0. 24

Bender v. Williamsport Area School District, 563

F. Supp. 697 (M. D. Pa. 1983), reversed, 741

F. 2d 538 (3rd Cir. 1984), vacated on jurisdic-

tional grounds, 475 U.S. 534 (1986) 24, 25

Bennett v. Livermore Unified School District, 193

Cal.App.3d 1012, 238 Cal.Rptr. 819 (1987) wu. 22

Bethel School District No. 403 v. Fraser, 478 U.S.

—, 92 L.Ed. 2d 549, 106 S.Ct. 3159 (1986) ............ 18, 20, 25

Board of Airport Commissioners v. Jews for Jesus,

Inc., 482 U.S. —, 96 L.Ed. 2d 500, 107 S.Ct. 2568

ERE GSES a SESSA i 0 a 20, 21

Brandon v. Board of Education of Guilderland

Central School, 635 F. 2d 971 (2nd Cir. 1980),

cert. denied, 454 U.S. 1123, reh. denied, 455 U.S.

ROE Fe eB EES ee ee 23

Brown v. Orange County Board of Public Instruc-

tion, 128 So. 2d 181 (Fla. App. 1960) ou 25

Bystrom v. Fridley High School Independent Dis-

trict No. 14, 822 F. 2d 747 (8th Cir. 1987) 0 17

Clark v. Dallas Independent School District, 671

rn WO, A es OU, cites. 17, 25

Collins v. Chandler United School District, 644

F’, 2d 759 (9th Cir.) cert. denied, 454 U.S. 863 (1981) 24

Cornelius v. NAACP Legal Defense and Educa-

tional Fund, 473 U.S. 788 (1985) ................. 11, 13, 14, 15, 19

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Eisner v. Stamford Board of Education, 440 F. 2d

803 (2nd Cir. 1971) ...... SONATE, Rare EO ..

Estate of Teel, 25 Cal.2d 520 (1944) nen 9

Fujishima v. Board of Education, 460 F. 2d 1355

I IS MUIR Sesser ss eanaeeleseeti chain tsiechatohilanencanoao —

Garnett v. Renton School District No. 403, 675

F. Supp. 1268 (W.D. Wash. 1987) nnn 17, 25

Goodwin v. Cross County School District No. 7,

394 F. Supp. 417 (B.D. Ark. 1973) mere 25

Hazelwood School District v. Kuhlmeier, 498 U.S.

—, 98 L.Ed. 2d 592, 108 S.Ct. 562 (1988) ..11, 13, 14, 15, 25

Heffron v. International Society for Krishna

Consciousness, 452 U.S. 640 (1981) nee cceccetce cece 19

Hernandez v. Hanson, 430 F. Supp. 1154 (D. Neb.

BT Sei hassennisiedaciscinthcchanicicleiiancntaiiniecsaaiedheiiaciibatibeiiahs 25

Hoffman Estates v. Flipside, Hoffman Estates,

pe EO | FERRER ae 21

Hunt v. Board of Education, County of Kanawha,

231 F. Sapp. 1263 (6.D. W. Va. 1971) —.......___._. 25

Jacobs v. Board of School Commissioners, 490

F. 2d 601 (7th Cir. 1973), vacated on jurisdic-

tional grounds, 420 U.S. 128 (1975) nnn. ecsneeeceesemnee 16

Johnson v. Huntington Beach Union High School

District, 68 Cal. App. 3d 1, 137 Cal. Rptr. 43,

cert. denied, 434 U.S. 887 (1977) nnn nneeceeesnsessnceeenneeee 4, 22, 25

Jones v. North Carolina Prisoners’ Labor Union,

Te RS Ek | Ren ee eS 15

Karp v. Becken, 477 F. 2d 171 (9th Cir. 1973) 16, 17

Katz v. McAulay, 438 F. 2d 1058 (2nd Cir. 1971),

cert. dented, 405 U.S. GSS (1972) nanan seessssenensenneceeeneee 17, 18

TABLE OF AUTHORITIES—Continued

Page(s)

Kompf v. Morrison, 73 Cal. App. 2d 284 (1946)... 9

Lehman v. City of Shaker Heights, 418 U.S. 298

(1974) ......... 13, 15

Lemon v. Kurtzman, 403 U.S. 602 (1971) 2. 23, 24, 26

Iipkis v. Caveney, 19 Cal. App. 3d 383, 96 Cal.

eee erator nay 26

Lubbock Civil Liberties Union v. Lubbock Inde-

pendent School District, 669 F. 2d 1038 (5th

Cir. 1982), cert. denied, 459 U.S. 1155 (1983) www. =. 24

Meltzer v. Board of Public Instruction of Orange

County, Florida, 548 F. 2d 559 (5th Cir. 1977)............ 25

Michael U. v. Jamie B., 39 Cal. 3d 787, 218 Cal.

Rptr. 39 (1985) 2. ; a

Nartowwcz v. Clayton County School District, 736

F’. 2d 646 (11th Cir. 1984) ....... 24, 25

Perry Education Association v. Perry Local Edu-

cators’ Association, 460 U.S. 37 (1983) ........... 11, 12, 13, 14

Riseman v. School Committee, City of Quincy,

GOD F'. BA BOS. C506 CR TOD iinet rea

Robinson v. Sacramento City Unified School Dis-

trict, 245 Cal. App. 2d 278, 53 Cal. Rptr. 781

CRI Dw caicccsdncesttscgeattacld Secu nbeneeaih maa cata teeta 19

San Diego Committee v. Governing Board of

Grossmont Union High School District, 790 F.

2d 1471 (9th Cir. 1986) ww. pial aeaniaatesial 16

Scovile v. Board of Education, 425 F. 2d 10 (7th

Cir.) cert. denied, 400 U.S. 826 (1970) cesses 17

Shanley v. Northeast Independent School Dis-

trict, 462 F’. 2d 960 (Sth Cir. 1972) cscs som 16

vi

TABLE OF AUTHORITIES—Continued

Page(s)

State Board of Education v. Board of Education

of Netcong, 270 A. 2d 412 (N.J. 1970), cert.

denied, 401 U.S. 1013 (1971) 2. 8

State ex rel. Greisinger v. Grand Rapids Board of

Education, 100 N. E. 2d 294 (Ohio), cert. denied,

340 U.S. 820 (1950), reh. denied, 341 U.S. 917

Student Coalition for Peace v. Lower Merion

School District Board of Directors, 776 ¥F. 2d

om? Cf S. sa ay 17

Thomas v. Board of Education Granville Central

School District, 607 F. 2d 1043 (2nd Cir. 1979) 17

Tinker v. Des Moines Independent Community

School District, 393 U.S. 503 (1969) _. 14, 16, 17, 21

Tudor v. Board of Education, 14 N.J. 31, 100 A.

2d 857 (1953), cert. denied, sub. nom., Gideons

International v. Tudor, 348 U.S. 816 (1954). =

Widmar v. Vincent, 454 U.S. 263 (1981) 22, 25

Ziegler v. Santa Cruz High School District, 168

Cal. App. 2d 277 (1959) 18

CoNnSTITUTIONS AND STATUTES

U.S. Const. Amend. I oe 2 5

20 U.S.C. §§ 4071, et seq. 6, 12,14

28 U.S.C. § 1257(3) a 2

California Constitution, Art. I, §4, Art. XVI, §5 00... 22

California Code of Civil Procedure § 632 00000. )

California Education Code

§ 40041 a. 5, 19

vil

TABLE OF AUTHORITIES—Continued

Page(s)

§ 44807 : - | 2,18

§ 48200 nnasiaiaagniaalian initileaiientinnaaiaae

§ 48907 - 2, 8, 10, 21

§ 48930 | denuded ee

§ 48932 | Ta — =

California Administrative Code Title 5, § 5552 anutey 18

Saddleback Valley Unified School District

Policy Nos.

5133.1 ania Riaknbsiedinn neneenienl 2,4, 15

5145.3 | inne sales ..5, 20

6144.1 on | | calinabaetiedian 5, 20

Saddleback Valley Unified School District

Administrative Regulation No. 5133.1 2, 4, 5, 20

OTHER AUTHORITIES

130 Congressional Record H-7736, H-7739 00000015

Regulations as to Fraternities and Similar Asso-

ciations Connected with Educational Institu-

tions, 10 A.L.R. 3d 389 (1966) ESE IO A OT 19

No. 88-340

t>.

Ww

In The

Supreme Court of the United States

October Term, 1988

°

ALEXANDER PERUMAL, et al.,

Plaintiffs and Petitioners,

v.

SADDLEBACK VALLEY UNIFIED

SCHOOL DISTRICT, e¢ al.,

Defendants and Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI TO THE

CALIFORNIA COURT OF APPEAL

Respondents respectfully request this Court deny Peti-

tioners’ petition for a writ of certiorari to review the judg-

ment of the California Court of Appeal, Fourth District,

Division 3.

fo)

OPINIONS BELOW

The judgment of the Court of Apepal was rendered on

January 29, 1988, and is reported at 198 Cal. App. 3d 64,

243 Cal. Rptr. 545 (1988). The opinion affirms the judg-

ment of the Superior Court of Orange County, California,

Case No. 45-78-95, filed July 1, 1985, an unreported judg-

ment.

JURISDICTION

The jurisdiction of this Court is pursuant to 28 U.S.C.

§ 1257(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS

The First Amendment to the United States Constitu-

tion provides:

Congress shall make no law respecting an establish-

ment 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 petition

the Government for a redress of grievances.

Relevant portions of the State of California Educa-

tion Code §§ 44807, 48907, 48930, 48932, 48200, and Title 5

of the California Administrative Code, § 5552, are set forth

in Appendix A attached hereto.

Saddleback Valley Unified School District Board Pol-

icy No. 5133.1 and Administrative Regulation 5133.1, only

faa

parts of which are set forth in the Appendix to the Peti-

tion, are included in their entirety as Appendix B at-

tached hereto.

STATEMENT OF THE CASE

The Saddieback Valley Unified School District is a

political subdivision of the State of California, organized

for the purpose of operating a public school system. The

District operates several high schools, including Mission

Viejo High School and El Toro High School. During the

1981-82 school year, the District allowed its high schools

to sponsor student religious clubs known as ‘‘New Life,’’

which were dedicated to Christian Bible study and prayer.

In March 1981, as a result of parent complaints and a

County Counsel opinion, the District withdrew its official

recognition of ‘‘New Life’’ but allowed students to con-

tinue to meet in classrooms during the school day and to

advertise their meetings as unofficial organizations. (Pet.

App. A at 2a, n.1)

In May 1982, the District adopted a new policy with

respect to student clubs. The new policy limited the use

of school facilities during the school day to those clubs

which were school-sponsored. (SCF 165-166, 189)! The

policy further provided that ‘‘No off-campus or private

. SCF, meaning Superior Court File, refers to the record on

appeal in this action in the California appellate system. Pur-

suant to local rule, and by stipulation of the parties, the record

on appeal in California consisted of the original Orange County

Superior Court file (Case No. 457895) rather than a Clerk’s

transcript. All subsequent SCF references are to this source.

4

clubs are permitted to function in the School. They are

also restricted from advertising in any form.’’ Saddle-

back Valley Unified School District Board Policy 5133.1.

(Reply App. B at 7) Student-sponsored clubs share cer-

tain criteria. The clubs must be approved by the asso-

ciated student governing body and the principal of the

school, membership is limited to students attending the

school, and membership must be open to all students who

meet the qualifications and standards of membership set

forth in the club charter. Each organization is required to

be sponsored by a faculty member who will attend all

meetings. School-sponsored clubs are permitted to use

the official name of the school, use school buildings and

other facilities, publicize activities on daily bulletin boards

and in school publications, wear identifying symbols and

sell on school premises tickets to special activities spon-

sored by the organization. (Reply App. B at 6)

Administrative Regulation 5133.1 requires that school

clubs have a curriculum-related purpose and conduct activ-

ities in compliance with Board policies. The regulation

makes the principal responsible for insuring that no off-

campus, private or non-sponsored clubs or organizations

function on the campus during the school day, including

break times, lunch period or other non-classroom time.’

(Reply App. B at 8) (Emphasis added.) Pursuant to

Board policies, all clubs and student organizations are

part of the District’s educational program. (SCF 182, 184)

The regulation further provides that off-campus, private or

a The lunch period is considered an inseparable part of the

school day. Johnson v. Huntington Beach Union High School

District, 68 Cal. App. 3d 1, 13 n.11, 14 n.12, 137 Cal. Rptr. 43,

cert. denied, 434 U.S. 887 (1977).

4)

non-sponsored clubs or organizations may apply through

appropriate channels to use school facilities outside of the

school day.? (Reply App. B at 8)

In the fall of 1982, students associated with the New

Life Club inquired of the principals of El Toro and Mis-

sion Viejo High Schools whether they could formally meet

for the purposes of discussing their particular religious

viewpoints and for prayer. The students were advised

they could not formally meet as a club or off-campus or-

ganization, but they were free to eat lunch together and

diseuss whatever they desired. (SCF 143, 150; Pet. App. A

at 2a, n.1) The right to such individual and personal ex-

pression is recognized by Board Policies 5145.3 and 6144.1

(Pet. App. F at 51a-53a), which is incorporated by refer-

ence into the District’s Administrative Regulation 5133.1

on student organizations. (Reply App. B at 9) District

administrators, from time to time as part of the normal

monitoring of campus activities, observed groups of stu-

dents reading and discussing the Bible during their lunch

break. However, there was no effort by these students to

formalize their organization by appointing or electing of-

ficers or by advertising their meetings. (SCF 143, 150)

In the beginning of the 1984-85 school year, the stu-

dent petitioners in this case attempted to re-establish

formal New Life Clubs at their respective campuses pur-

; Public schools outside of the instructional day are civic

centers available to students for non-school but related pur-

poses. California Education Code § 40041. Students may use

these facilities subject to various regulations relating to avail-

ability and non-interference with the general school process.

Petitioners in this case have been repeatedly informed of their

rights pursuant to these provisions and their ability to apply for

such usage. (SCF 177)

suant to the Federal Equal Access Act of 1984. (20 U.S.C.

§§ 4071, et seq.) Acting as Presidents of the New Life

Clubs at their respective high schools, Petitioners Read

and Perumal, with the support of a citizens’ Christian

evangelical group, appeared at various School Board meet-

ings requesting they be allowed to operate on campus like

other student clubs. (Pet. App. A at 2a, n.1) These re-

quests included demands for the right to use a classroom

for meetings and to advertise club meetings through the

media of the school bulletin, advertising flyers passed out

to other students and posters placed in the school hallways.

(SCF 181) The request was based on an assertion that

the District allowed other non-curriculum related clubs to

meet. In response, the District surveyed existing clubs

and concluded all clubs were school-sponsored and, in ef-

fect, curriculum-related.4 The District specifically in-

formed Petitioners that in fact the District did not have a |

limited open forum. (SCF 182) |

Petitioners then requested the Board of Trustees to

consider modification of its existing policy by establishing |

a limited open forum in order that Petitioners might form-

ally meet and advertise their Bible study and prayer meet-

ings. A public meeting was held on the matter and after

extensive public debate, including statements from both

Petitioners and their parents, individual Board members

expressed their opinions that the existing policy and prac-

tice should not be changed or modified. (SCF 185)

Notwithstanding the Board’s decision, Petitioners at-

tempted to circumvent the policy and reinstate non-school

‘ This finding by the District was not challenged in these

proceedings.

ee |

7

sponsored high school clubs by advertising on campus New

Life Club or group activities, including Bible study and

prayer meetings to be held during the school day. In a

letter to the principal on February 7, 1985, Petitioner Per-

umal, as President of the El Toro New Life Club, request-

ed the right to distribute a flyer which advertised, ‘‘New

Life at ETHS.’’ (SCF 144,147) The flyer indicated New

Life meetings occurred on-campus every Tuesday and

Thursday during the lunch period of the school day, and

stated the Club’s purposes were Bible study, ‘‘meeting

with other Christians at school,’’ and ‘‘praying for the

needs of others while they pray for your needs.’’ Peti-

tioner Perumal’s request was denied in light of the Dis-

trict’s policy concerning private or off-campus organiza-

tions. (SCF 144)

In March 1985, Petitioner Read, as President of ‘‘New

Life, Mission Viejo High School,’’ made a similar request

for permission to distribute a flyer advertising Bible study,

‘learning about Jesus Christ,’’ ‘‘helping others through

prayer,’’ and ‘‘having Christian friends.’’ This request

was also denied by the principal after a meeting with Peti-

tioner wherein the District policy was explained. (SCF

151) Both the Perumal and Read decisions were based

upon the conclusion that neither organization had any re-

lationship to the school’s curriculum.

Petitioner Read later attempted to submit an adver-

tisement to the school yearbook. The advertisement would

have publicized New Life meetings to be held on campus

during the school day, and, quoting from the New Testa-

ment, proclaimed the religious nature and purpose of the

Club. (SCF 157) The advertisement was rejected on the

basis of the District’s policy. (SCF 152)

Finally, on March 26, 1985, both Petitioners attended

a meeting with the District Superintendent and the prin-

cipal at Mission Viejo High School. During this meeting,

Petitioners renewed their request to distribute flyers ad-

vertising their meetings, and requested the entire issue be

placed on the School Board meeting agenda. Petitioners

acknowledged that the purpose of the request was to better

proselytize for membership. (SCF 187) Petitioners were

informed they previously had been given the opportunity

to fully address the School Board with their request to have

the campus opened up to non-school sponsored, non-cur-

riculum related clubs, and entitle them to meet and ad-

vertise their meetings. Petitioners were reminded that

their request, after extensive public debate, had been re-

jected, and it was felt there was no point in revisiting the

matter. (SCF 176-177)

Thereafter, Perumal and Read commenced an action

in the California Superior Court seeking a writ of man-

date and challenging the District’s regulations and actions

on the basis of California Education Code Section 48907

' and the First Amendment’s guarantee of the right to free

speech. Petitioners requested the Court mandate they be

permitted to publish their advertisement in the Mission

Viejo High School yearbook, and they and their fellow

students be allowed to distribute flyers advertising their

meetings in aceordance with California Education Code

Section 48907.5 The District defended first on the basis

5 While the suit also requested damages according to proof,

no evidence was submitted to the court of any damages. Under

a fundamental doctrine of appellate review, all legitimate and

(Continued on following page)

that its policy was a valid regulation governing operation

of student organizations and clubs and that the policy pre-

cluded non-school sponsored clubs and organizations from

meeting or advertising during the instructional day. Sec-

ondly, the District maintained that to allow the distribu-

tion of religious flyers and materials on a public school

campus during the instructional day would violate the es-

tablishment clause of the First Amendment of the United

States Constitution and various provisions of the Cali-

fornia state constitution.

The matter was submitted to the Superior Court on

the basis of the petition, the return, the demurrer thereto,

and evidence submitted by Respondents by way of declara-

tion.© The petition was denied (SCF 444), and Petition-

ers did not request a statement of decision.’

(Continued from previous page)

reasonable inferences must be indulged in to uphold the ver-

dict of the trial court. When a verdict is attacked, the power

of the reviewing court begins and ends with a determination

as to whether there is any substantial evidence contradicted or

uncontradicted which will support the finding below; Bancroft-

Whitney Co. v. McHugh, 166 Cal. 140, 142 (1913); Estate of Teel,

25 Cal. 2d 520, 527 (1944); unless the record affirmatively dem-

onstrates error, the reviewing court will adopt the holding be-

low. Kompf v. Morrison, 73 Cal. App 2d 284, 286-287 (1946).

In this case, Petitioners failed to present any evidence of dam-

ages at the trial court leve! and thus, on appeal, cannot raise the

issue of damages.

. Petitioners had originally requested an evidentiary hear-

ing. (SCF 388) However, at the time scheduled for the mat-

ter, Petitioners agreed to go forward on the basis of the writ-

ten record before the trial court.

’ Under California Code of Civil Procedure Section 632, any

party appearing at trial may request a statement of decision

(Continued on following page)

10

The California Court of Appeal affirmed by a divided

vote of 2 to 1. In so doing, the court rejected Petition-

ers’ main argument that the District’s action violated Cali-

fornia Education Code Section 48907, which provides a

broad spectrum of free speech rights to students. The

court concluded the statute allows school districts to prom-

ulgate their own ‘‘lawful regulations’’ and provides stu-

dent rights may be restricted if the expression violates

those lawful regulations. (Pet. App. A at 4a-5a) The

court recognized that the policy prohibiting off-campus or

non-school sponsored clubs from functioning or advertis-

ing on campus was a valid rule under Education Code Sec-

tion 48907. The court also recognized the District’s right

to elect to maintain a closed forum as opposed to a limited

open forum. (Pet. App. A at 7a and 9a) Moreover, the

court rejected Petitioners’ argument that New Life was

not in fact an off-campus or private club. Instead, the

eourt found the structure surrounding the group’s meet-

ings, including its leadership hierarchy, advertising, in-

struction, and meeting schedule, were all indicative of an

off-campus or private club, thereby bringing the organiza-

tion within the ambit of the rule. (Pet. App. A at 6a-7a)

The court further concluded that a religious club operat-

ing in the closed forum adopted by the District would vio-

(Continued from previous page)

explaining the legal and factual basis for the court’s decision

on each principal controverted issue. The request must be

made within 10 days after the court announces a tentative deci-

sion. Failure to request a statement of decision results in an

assumption by the reviewing court that the trial court made

findings necessary to sustain the judgment. Michael U. v. Jamie

B., 39 Cal. 3d 787, 793, 218 Cal. Rptr. 39 (1985). And as dis-

cussed in footnote 5, supra, a reviewing court will indulge in

every reasonable inference to sustain a judgment below.

a

11

late both state and federal constitutional proscriptions

against the establishment of religion. (Pet. App. A at

9a-13a)

Petitioners sought discretionary review by the Calli-

fornia Supreme Court, which was denied on April 27, 1988.

This Petition for Certiorari followed.

co)

SUMMARY OF ARGUMENT

Contrary to Petitioners’ assertion, this case does not

involve individual expression or questions of censorship

on the basis of subject matter. Rather, the issue is wheth-

er a public school district devoted to primary and second-

ary education has the right to limit the use of its facilities

during the compulsory attendance day to student organiza-

tions and clubs which are related to the school district’s

educational program. Respondents’ activity in this case

is limited to enforcing a policy, which applies only to off-

campus or private clubs that attempt to function and ad-

vertise in a school, during the time set aside for the eur-

riculum and matters attendant thereto. Excluding off-

campus clubs and organizations from operations during

the compulsory attendance day, as was done in this case,

is entirely consistent with this Court’s recent determina-

tions in Hazelwood School District v. Kuhlmeier, 498 U.S.

—-, 98 L.Ed. 2d 592, 108 S.Ct. 562 (1988); Cornelius v.

NAACP Legal Defense and Educational Fund, 473 US.

788 (1985); and Perry Education Association v. Perry

Local Educators’ Association, 460 U.S. 37 (1983). Fur-

thermore, the School District’s decision is a legislatively

12

recognized option under the Equal Access Act. 20 U.S.C.

§§ 4071, et seq. In addition, the California Court of Ap-

peal correctly found that under the circumstances of this

ease, the distribution of religious literature and advertise-

ments on a high school campus would violate the California

and United States Constitutions. Under the facts of this

ease, the state court of appeal’s decision was correct and

consistent with well-established precedent, and should not

be reviewed.

ARGUMENT

I. THE SCHOOL DISTRICT’S DECISION TO

LIMIT STUDENT CLUBS AND ORGANIZA-

TIONS WHICH OPERATE AND ADVERTISE

DURING THE INSTRUCTIONAL DAY TO

THOSE THAT ARE SCHOOL-SPONSORED

AND CURRICULUM-RELATED IS CONSIST-

ENT WITH THIS COURT’S FIRST AMEND.

MENT FORUM ANALYSIS.

In Perry Education Association v. Perry Local Edw

cators’ Association, supra, 460 U.S. 37, this Court recog-

nized three types of forums: the open forum, those places

which from time immemorial have been open for public

debate and discussion such as streets and parks; the lim-

ited forum, public property the state has opened for

use by the public as a place for expressive activity; and

the non-public forum, public property which is not by tradi-

tion or designation a forum for public communication.

With respect to the first two forums, reasonable time, place

and manner regulations are permissible but content-based

restrictions must be narrowly drawn to effectuate a com-

13

pelling state interest. 460 U.S. at 45-46. However, this

Court has held the state may reserve the non-public forum

for ‘‘its intended purposes, communicative or otherwise,

as long as the regulation of speech is reasonable and not

an effort to suppress expression merely because public

officials oppose the speaker’s viewpoint.’’ 460 U.S. at 46.

In discussing its forum analysis, this Court in Corne-

lius v. NAACP Legal Defense and Educational Fund, su-

pra, 473 U.S. 788, noted there must be ‘‘clear evidence’’ of

an intent by the state to create a public forum. With re-

spect to control of access to a non-public forum, the Court

recognized a public agency could exclude a speaker ad-

dressing a topic not encompassed within the purpose of the

forum. 473 U.S. at 806. (See also Lehman v. City of

Shaker Heights, 418 U.S. 298 (1974)). Additionally, a

speaker who was not a member of the class of speakers for

whose special benefit the forum was created could be ex-

cluded from the forum. Cornelius, supra, 473 U.S. at 806.

(See also Perry Education Association, supra.)

In Hazelwood School District v. Kuhlmeier, 498 U.S.

—, 108 S.Ct. 562, supra, this Court specifically noted pub-

lice schools do not possess all of the attributes of streets,

parks and other traditional public forums. 108 S.Ct. at

567. Further, the Court decided school facilities may be

deemed public fora only if school authorities have, by

policy or by practice, opened those facilities for indis-

criminate use by the general public or by some segment

of the public such as student organizations. 108 S.Ct. at

568. The Court recognized if instead of opening the

forum, school facilities have been reserved for other in-

tended purposes, communicative or otherwise, then no

public forum has been created. In such ease, school offi-

14

cials may impose reasonable restriction:’ on the speech of

students, teachers and other members oi the school com-

munity. In Hazelwood, the Court concluded the school-

sponsored newspaper was not a limited forum for student

expression since school officials had clearly retained con

trol of the student newspaper for educational reasons. 108

S.Ct. at 568-569. Additionally, the Court noted that school

district inaction, by not silencing students’ personal ex-

pression, which happened to occur on school premises did

not, in and of itself, create a public forum. 108 8.Ct. at

569. The Court recognized certain activities, such as those

the public might reasonably perceive to bear the imprima-

tur of the school, may be fairly characterized as part of

the school curriculum, whether or not they occur in a tradi-

tional classroom setting, so long as they are supervised

by faculty members and designed to impart particular

knowledge or skills to students and audiences. 108 S.Ct.

at 569-570. The Court concluded that the student expres-

sion standard previously recognized in Timker v. Des

Moines Independent Community School District, 393 U.S.

503 (1969), did not establish a standard for determining

when a school may refuse to lend its name and resources

to the dissemination of student expression. 108 S.Ct. at

570-571.

Consistent with this Court’s opinions in Perry, Cor

nelius and Hazelwood, the Saddleback Valley Unified

School District has determined not to take affirmative

action to establish an open forum for student organiza-

tions or clubs.* Rather, the District has determined that

. This determination is also consistent with the recently

enacted Federal Equal Access Act (20 U.S.C. §§ 4071, et seq.),

(Continued on following page)

15

during the instructional day, the only clubs and organiza-

tions permitted to operate on campus are those which are

curriculum-related or related to the educational program

of the District. Such is the essence of District Policy

5133.1 and the practice surrounding that policy.’ This

District policy, which excludes all off-campus and private

clubs and organizations from operating and advertising’

during the instructional day, is quite clearly viewpoint

(Continued from previous page)

which requires a school district provide equal access in the

event a limited open forum is created. The Act presupposes a

choice on the part of the school district between a limited open

forum and a closed forum. See Student Coalition for Peace v.

lower Merion School District Board of School Directors, 776

F. 2d 431, 442 (3rd Cir. 1985). Such a choice is not only in-

herent within the terms of the Act itself, but is clearly consist-

ent with the legislative history behind the Act. 130 Congres-

sional Record, H-7739 (Daily Ed. July 25, 1984) (Statement of

Rep. Synar); Id. at H-7736 (Statement of Rep. Bonker); /d.

(Statement of Rep. Pepper).

° The yearbook advertisement is not in fact unique as sug-

gested by Petitioners. Just as the newspaper in Hazelwood,

the yearbook is a school-sponsored document. While commer-

cial advertisements have been accepted to defray operating

expenses (amounting to less than 5°/o of the budget) (SCF 152),

it is clear that off-campus and private club advertising in the

yearbook is specifically excluded by District Policy 5133.1. As

such, private club advertisements represent a topic not en-

compassed within the purpose of the forum. This determination

is analogous to the ban on political advertisements addressed

by this court in Lehman v. City of Shaker Heights, supra, 418

U.S. 298 (1974). See Cornelius v. NAACP Legal Defense and

Educational Fund, supra, 473 U.S. 788, 806.

se The Petition also fails to recognize the difference between

informal discussions, which the District has never sought to

restrict, and solicitations to join in formal meetings. As recog-

nized by this Court, however, “solicitation of membership itself

involves a good deal more than the simple expression of in-

dividual views.” Jones v. North Carolina Prisoners’ Labor Union,

Inc., 433 U.S. 119, 131 (1977).

nee

16

neutral!! and is «sonably related to the purpose of the

forum.

si In this respect, the present case is completely dissimilar

to Tinker, supra, wherein the rule at issue found by this Court

to be unconstitutional was expressly viewpoint-based. In Tinker,

the Court emphasized the fact that school authorities did not

purport to prohibit the wearing of all symbols of political or

controversial significance, but only banned a specific symbol

exhibiting opposition to the nation’s involvement in the Vietnam

war. The Tinker Court very clearly recognized the regulation

in question prohibited expression of one particular opinion.

393 U.S. at 510-511. A similar distinction can be made with

respect to another case relied upon in the petition, San Diego

Committee v. Governing Board of Grossmont Union High

School District, 790 F. 2d 1471 (9th Cir. 1986). In San Diego,

once again there was a clear restriction based upon the speak-

er’s viewpoint since the newspaper in question had accepted

advertisements supporting the draft, which the court recognized

as political speech, while rejecting an advertisement in opposi-

tion thereto.

4s

Likewise, the reliance of the petitioners on the ‘under-

ground newspaper” cases is not well-taken. (Pet. at 18, n.13)

Those cases, which by and large apply the Tinker analysis, in-

volve primarily overbroad or vague policies, which effectively

prohibited all types of individual student expression. See

Jacobs v. Board of School Commissioners, 490 F. 2d 601 (7th

Cir. 1973), vacated on jurisdictional grounds, 420 U.S. 128 (1975)

(underground student newspaper involving individual expres-

sion); Baughman v. Freienmuth, 478 F. 2d 1345, 1347-1348 (4th

Cir. 1973) (individual expression attacking school regulation pro-

hibiting a form of pamphleteering); Karp v. Becken, 477 F. 2d

171, 174-175 (9th Cir. 1973) (school district had the right to

discipline student for disruption caused by carrying a placard);

Fujishima v. Board of Education, 460 F. 2d 1355, 1356 (7th Cir.

1972) (individual expression by two students by means of an

underground newspaper); Shanley v. Northeast Independent

School District, 462 F. 2d 960, 964 (5th Cir. 1972) (individual

expression involving an underground newspaper distributed off-

campus); Fisner v. Stamford Board of Education, 440 F. 2d 803,

805, 808 (2nd Cir. 1971) (recognition of school authorities’ right

to preclude or restrict distribution of off-campus student news-

papers on school property, but finding policy vague with respect

(Continued on following page)

17

The exclusion of off-campus and private clubs and

organizations from functioning and advertising on a school

campus during the instructional day serves legitimate and

important purposes directly related to the educational

function of the school. First, since the school has a lim-

ited amount of resources and facilities available during

the instructional hours for student organizations, the Dis-

trict has determined those resources should be limited to

(Continued from previous page)

to definition of distribution); Riseman v. School Committee,

City of Quincy, 439 F. 2d 148, 149 (1st Cir. 1971) (school author-

ity rule designed for the purpose of controlling in-school ad-

vertising or promotional efforts of organizations held to be

vague and improperly used to control distribution of an anti-

war leaflet); Scoville v. Board of Education, 425 F. 2d 10, 11 (7th

Cir.) cert. denied, 400 U.S. 826 (1970) (individual expression

criticizing school policies and authorities); Thomas v. Board of

Education Granville Central School District, 607 F. 2d 1043,

1045, 1050 (2nd Cir. 1979) (off-campus distribution of individ-

ually-produced newspaper); Bystrom v. Fridiey High School In-

dependent School District No. 14, 822 F. 2d 747, 749-750 (8th

Cir. 1987) (school district may prohibit the distribution on

school property of an underground newspaper).

Rather, this case is consistent with other cases holding that

a public school is not necessarily a public forum for the pur-

pose of non-school related gatherings and activities. Student

Coalition for Peace v. Lower Merion School District Board of

Directors, 776 F. 2d 431, 435 (3rd Cir. 1985); Garnett v. Renton

School District No. 403, 675 F. Supp. 1268 (W. D. Wash. 1987);

Cf. Katz v. McAulay, 438 F. 2d 1058 (2nd Cir. 1971) cert. denied,

405 U.S. 933 (1972); Karp v. Becken, supra; Clark v. Dallas In-

dependent School District, 671 F. Supp. 1119, 1122 (N. D. Tex.

1987).

Finally, in Tinker, the Court also recognized that expression

cannot intrude upon the work of the school. Tinker, supra, 393

U.S. at 508. In this respect, the meeting and advertisement of

off-campus and private clubs in fact does intrude upon the Dis-

trict’s ability to effectively sponsor and utilize limited attendance

day non-classroom time for classroom-related purposes. See

discussion at pp: 17-19, infra.

18

student groups and organizations which directly relate to

the school’s established curriculum. In this respect, the

District has required that faculty members be involved

in the operation of school-sponsored clubs. Second, the

District wishes to avoid diluting the potential educational

enrichment provided by school-sponsored organizations

such as could result if curriculum-related organizations

were placed in competition with private clubs for student

attention and interest.’2 Third, the need to monitor and

control student organizations and clubs operating within

the school framework or setting has long been a matter of

public concern and policy." In this respect, the California

legislature has expressly authorized public school boards

to charter student organizations and control their activ-

ities. California Education Code Sections 48930, et seq.

Moreover, a majority of states have legislation prohibit-

ing elitist social clubs and organizations from operating

on school campuses. These regulations recognize the

potentially detrimental impact and effect such organiza-

ae See Katz v. McAulay, supra, 438 F. 2d at 1061, wherein

the court noted: “Where outside organizations or individuals

espousing various causes seek to take advantage of the required

assemblage of secondary school pupils as a captive audience to

solicit funds, either directly or through the agency of some of

the pupils, for their particular project or cause, they are in ef-

fect in competition for the time, attention and interest of the

pupils with those who are seeking to administer the school sys-

tem. Whether it is done a few minutes before school opens

or a few minutes after, its effect is not so limited in time and

it is plainly harmful to the operation of the public schools.”

ad The School District has a statutory duty to provide super-

vision. Calif. Education Code Section 44807; 5 Cal. Admin. Code

Section 5552; see, Ziegler v. Santa Cruz High School District,

168 Cal. App. 2d 277, 284 (1959). See also Bethel School Dis-

trict No. 403 v. Fraser, 478 U.S. —, —, 92 L.Ed. 2d 549, 559,

106 S.Ct. 3159 (1986).

19

tions can have upon school purposes. See Robinson v.

Sacramento City Unified School District, 245 Cal. App. 2d

278, 289, 53 Cal.Rptr. 781 (1966) for a review of the states

with similar legislation and cases dealing with such re-

strictions; see also, Annot. Regulations as to Fraternities

and Similar Associations Connected with Educational In-

stitutions, 10 A.L.R. 3d 389 (1966).

In sum, Saddleback Valley Unified School District

has chosen to devote the six hours of the compulsory at-

tendance school day to educational courses and curricu-

lum-related activities. Students who wish to join organ-

izations or engage in other types of activities outside of

the curriculum have the remaining 18 hours of each day

available to them. Furthermore, students joining such

organizations have access to school facilities under the

Civie Center Usage Act. California Education Code

§ 40041. In this case, the California appellate court found

” While the District does not believe it must justify its reg-

ulation on a time, place or manner basis, the District does be-

lieve that such justification could be found. Since off-campus

and private clubs and organizations are free to use the school

facilities in accordance with the limited forum created by the

California Civic Center Act (i.e., outside of the instructional

day), use restrictions during the compulsory attendance day are

reasonable time, place and manner restrictions.

The compulsory attendance day, which is reserved for class-

room instruction and student organizations related to the cur-

riculum, is not the appropriate time for off-campus private clubs

to function. By delegating those activities to a time after the

compulsory attendance day, the District regulation could be

considered an appropriate time restriction. Students could meet

on campus shortly after the attendance day has concluded and,

in that respect, gain whatever benefits they desire. See Reply

App. B and discussion, supra at pp. 17-18. Cf. Cornelius, supra;

Heffron v. International Society for Krishna Consciousness, 452

U.S. 640 (1981).

20

not only a clear intent by the School District to maintain

a closed forum but also that Petitioners, as a matter of

fact, were attempting to advertise and operate as an off-

campus or private club in violation of the policy.

II. THE SCHOOL’S PROHIBITION ON ADVER-

TISEMENTS BY OFF-CAMPUS AND PRI-

VATE CLUBS IS NOT OVERBROAD OR

VAGUE.

The School District’s policy is not overbroad. As

this Court recognized in Board of Airport Commissioners

v. Jews for Jesus, Inc., 482 U.S. —, —, 96 L.Ed. 2d 500,

507, 107 S.Ct. 2568 (1987), a statute is invalid on its face

only if the overbreadth is ‘‘substantial.’’ Moreover, un-

like the Airport Board resolution found invalid in Jews

for Jesus, the District’s policy and rule does not create a

First Amendment free zone or area. The only expression

prohibited by the policy is a_ specific category of

speech which, as noted above, is inconsistent with the pur-

pose and intent of the forum. The policy only prohibits

advertisement of off-campus or non-school sponsored clubs

or organizations operating ‘‘in the school.’ As such,

it only applies to a narrow class of expression and only

during the instructional day. Other types of student ex-

pression are not impacted.'®

= The rule in question is much more narrowly drawn than

the regulations upheld by this court in Bethel v. Fraser, supra,

478 U.S. at —, 92 L.Ed. 2d at 555.

ts District Administrative Regulation 5133.1 refers to Board

policies 5145.3 and 6144.1, which specifically allow students to

wear buttons, badges and other insignia, and allow students the

right to free expression. Clearly, the intent behind the regulation

(Continued on following page)

:

E

|

’

{

21

In the case at hand, the restriction as applied and

interpreted by the California court was limited to off-

campus or private clubs, which maintain a leadership

structure for the purpose of pursuing the club’s goals,

recruit new members and advertise regular meetings

scheduled on an ongoing basis at specific times and loca-

tions.” Clearly, the rule does not apply to individual or

spontaneous discussions. In effect, the regulation pro-

hibits off-campus groups and organizations from exploit-

ing the public school system with its compulsory attend-

ance day. By their own actions, Petitioners’ New Life

organizations ceased being merely on-campus informal,

private discussion groups and became structured organiza-

tions, which sought to expand by advertising. Therefore,

New Life became clearly recognizable off-campus or pri-

vate clubs within the purview of the District policy.”

(as recognized by the appellate court) was to follow both this

Court’s mandate in Tinker and the statutory mandate of Cali-

fornia Education Code § 48907. See Board of Airport Commis-

sioners v. Jews for Jesus, supra, 482 U.S. at —, 96 L.Ed. 2d at 508.

sd This finding was consistent with the declarations of the

principals who are responsible for enforcement of the policy.

(Reply App. B at 7-8) (SCF 144, 152-153).

= To the extent Petitioners allege that the policy is vague

and therefore invalid, they ignore this Court’s direction in Hoff-

man Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489

(1982). In Hoffman Estates, the court held: “A plaintiff who

engages in some conduct that is clearly proscribed cannot com-

plain of the vagueness of the law as applied to the conduct of

others. A court should therefore examine complainant’s conduct

before analyzing other hypothetical applications of the law.”

455 U.S. at 495. Moreover, there has been no showing that his-

torical application has in any way precluded groups or individ-

uals from engaging in any of the non-covered conduct outlined

in the Petition at pages 12-13.

22

III. POTENTIAL VIOLATION OF THE ESTAB-

LISHMENT CLAUSE OF THE U.S. CONSTI-

TUTION AND OF THE CALIFORNIA CON-

STITUTION PROVIDES A COMPELLING

STATE INTEREST WITH RESPECT TO THE

ADVERTISEMENTS IN QUESTION IN THIS

CASE.

There is no question that the advertisements in ques-

tion in this case are part of a plan to proselyte youth at-

tending a public high school for religious purposes. By

advertising, Petitioners and their outside sponsoring or-

ganization (Pet. App. A at 2a, n.1) were seeking to take

advantage of the state’s compulsory school attendance

laws. In light of the cireumstanes of this case, the School

District’s policy served a compelling state interest by com-

plying with the District’s constitutional obligation not to

violate the establishment clause of the United States Con-

stitution or the state constitutional mandate that schools

not be used for religious purposes.”” Cf. Widmar v. Vin-

19 In their March 26, 1985 request to the District Superin-

tendent, Petitioners wrote: ‘As representatives of student Bible

studies currently taking place on campus, we are asking for a

medium to make other students aware of our meetings. Our re-

search indicates that a significant number of students do not

know that we exist.” (SCF 187)

20 Article |, Section 4, and Article XVI, Section 5, of the Cal-

ifornia State Constitution prohibit any state establishment

of religion. In Bennett v. Livermore Unified School District, 193

Cal. App. 3d 1012, 1016-1017, 238 Cal. Rptr. 819 (1987), the

court held the California constitutional provisions in the area

of religious involvement in the schools to be more comprehen-

sive and restrictive than those of the federal Constitution. As

the court noted therein: ‘It bans any official involvement, what-

ever its form, which has the direct, immediate and substantial

effect of promoting religious purposes.” See also Johnson v.

(Continued on following page)

eee

23

cent, 454 U.S. 263, 271 (1981), wherein this Court noted

that a public agency’s interest in complying with its con-

stitutional obligations may be characterized as compel-

ling.

The impact of student religious activity on a public

high school campus has been reviewed and discussed by

the United States Court of Appeals for the Second, Third,

Fifth, Ninth, Tenth, and Eleventh Circuits. In examining

religious activity on the high school campus, courts have

applied this Court’s tripartite test for establishment clause

violations as announced in Lemon v. Kurtzman, 403 U.S.

602 (1971). The various Cireuit Courts of Appeals have

recognized that in light of compulsory attendance laws and

the impressionable nature of students of high school age,

religious activity on a public school campus during the

compulsory attendance day is incompatible with the basic

and fundamental purpose of public education, and in effect

violates the second and oftentimes the third prong of the

Lemon test.24_ Moreover, the impressionable nature of

(Continued from previous page)

Huntington Beach Union High School District, supra, 68 Cal.

App. 3d 1, 15-16, wherein the court noted the California Con-

stitution prohibited school officials from permitting a Bible

study class to meet and conduct its activities on the school

campus during the school day.

21 In Brandon v. Board of Education of Guilderland Central

School, 635 F. 2d 971 (2nd Cir. 1980), cert. denied, 454 U.S.

1123, reh. denied 455 U.S. 983 (1981), the Second Circuit con-

cluded voluntary student-initiated prayer meetings, which oc-

curred during school hours, created the appearance of official

support to impressionable students and thereby advanced re-

ligion. 635 F. 2d at 978-979. The Court further noted that the

supervision required by state law during school hours also in-

(Continued on following page)

24

(Continued from previous page)

volved impermissible entanglement of state and religion in vio-

lation of Lemon. 635 F. 2d at 979. In Bender v. Williamsport

Area School District, 563 F. Supp. 697 (M. D. Pa. 1983), reversed,

741 F. 2d 538 (3rd Cir. 1984), vacated on jurisdictional grounds,

475 U.S. 534 (1986), the Third Circuit recognized that the pres-

ence of a non-school sponsored religious group within the

school during the curriculum day had the effect of advancing

religion in light of the perceptions of impressionable students.

This was true even though the students had agreed, in an ef-

fort to mitigate the potential effect, not to use bulletin boards,

newspapers or the public address system to promote their meet-

ings. 741 F. 2d at 542. The court likewise found excessive re-

ligious-secular entanglement was present as a result of the

schoo! district’s responsibility to maintain safety, order and a

secular schedule, and the potential need to settle controversies

and disputes between students on religions issues. 741 F. 2d at

556-557. In Lubbock Civil Liberties Union v. Lubbock Independ-

ent School District, 669 F. 2d 1038 (5th Cir. 1982), cert. denied,

459 U.S. 1155 (1983), the Fifth Circuit aiso recognized the po-

tential harmful effect upon impressionable students caused by

the district permitting religious meetings to occur immediately

before and after school. 669 F. 2d at 1045. The court noted a

critical factor in its decision was the existence of the compulsory

education day, which made students available to attend volun-

tary religious meetings. 669 F. 2d at 1046. In Collins v. Chandler

United School District, 644 F. 2d 759 (9th Cir. 1981), cert. denied,

454 U.S. 863 (1981), the Ninth Circuit recognized religious ac-

tivities “in the institutionally coercive setting of primary and

secondary schools” are sufficient to justify a conclusion that

the district's action had the impermissible effect of advancing

religion in violation of the First Amendment establishment clause,

and further, that a hands-off attitude by the school district was

unacceptable. 644 F. 2d at 762. In Bell v. Little Axe Independent

School District No. 70, 766 F. 2d 1391 (10th Cir. 1985), the Tenth

Circuit recognized that, as a result of both the impressionable

nature of students and their inability to avoid contact with re-

ligious participants because of the compulsory education laws,

the impermissible effect of advancing religion existed. The court

also found excessive entanglement of state and religion was

present. Finally, in Nartowicz v. Clayton County School District,

736 F. 2d 646 (11th Cir. 1984), the Eleventh Circuit recognized

establishment clause violations were present when a school dis-

trict permitted religious groups to disseminate “secular” mes-

sages at a school during the school day. The court cited the

(Continued on following page)

25

secondary school students and the captive audience effect

created by compulsory attendance laws, such as California

Edueation Code Section 48200, have recently been rec-

ognized by this Court in Fraser, supra, 478 U.S. at —,

92 L.Ed. 2d at 558. See also, Hazelwood, supra, 498 U.S.

at —, 108 S.Ct. at 567; Cf. Widmar v. Vincent, 454 U.S.

at 274, n.14.

In essence, this case does not involve students who

simply wish to meet and diseuss their own personal points

of view. Rather, this case involves students who, with out-

(Continued from previous page)

impressionable nature of students, who might not discern subtle-

ties involved in “secular” announcements made by religious

persons using school facilities. The holding noted the fact that

the parties had agreed that announcement of religious activ-

ities would be impermissible. 736 F. 2d 649 and 649, n.3. See

also, Hernandez v. Hanson, 430 F. Supp. 1154, 1162 (D. Neb.

1977); Hunt v. Board of Education County of Kanawha, 321 F.

Supp. 1263 (S.D. W. Va. 1971); Garnett v. Renton School Dis-

trict No. 403, 675 F. Supp. 1268 (W. D. Wash. 1987); Clark v.

Dallas Independent School District, 671 F. Supp. 1119 (N. D.

Tex. 1987); State ex rel. Greisinger v. Grand Rapids Board of

Fducation, 100 N. E. 2d 294 (Ohio), cert. denied, 340 U.S. 820

(1950), reh. denied, 341 U.S. 917 (1951); State Board of Educa-

tion v. Board of Education of Netcong, 270 A. 2d 412 (N.J. 1970),

cert. denied, 401 U.S. 1013 (1971); Johnson v. Huntington Beach

Union High School District, supra, 68 Cal. App. 3d 1; but see

Bender v. Williamsport Area Schoo! District, 563 F. Supp. 697

(M. D. Pa. 1983), reversed 741 F. 2d 538 (3rd Cir. 1984), vacated

on jurisdictional grounds, 475 U.S. 534 (1986).

An additional establishment clause problem is created by

the religious content of the advertisements. Two of the adver-

tisements set forth the Biblical text found at Il Corinthians 5:17,

and the third contained the statement, “Christ is born. God kept

his promise.” Many courts have found the distribution of re-

ligious literature on a public school campus to be inappropriate.

Meltzer v. Board of Public Instruction of Orange County, Florida,

548 F. 2d 559 (5th Cir. 1977); Goodwin v. Cross County School

District No. 7, 394 F. Supp. 417 (E. D. Ark. 1973); Brown v.

Orange County Board of Public Instruction, 128 So. 2d 181 (Fla.

App. 1960); Tudor v. Board of Education, 14 N. J. 31, 100 A. 2d

857 (1953), cert. denied, sub. nom., Gideons International v.

Tudor, 348 U.S. 816 (1954).

dcottUCtCUMU CUUttH]tHUHMOOMO] 0] I UE I L—_ |

26

side assistance, have undertaken an organizational effort

during the compulsory attendance day to build a student

organization committed to religious study, and which

would hold organized meetings during the compulsory

attendance day. Such a purpose and direction is totally

inconsistent with the defined purpose of the state-sup-

ported public school system for children. Moreover, if

the School District allowed this activity, the effect and

entanglement problems recognized by the federal courts

in the above-referenced establishment clause cases and by

this Court in Lemon, clearly would become relevant.

ry

Ww

IV. CONCLUSION

For all the foregoing reasons, Respondent submits that

Petitioners have failed to establish any sound basis for

this Court to review the holding below. The Petition for

a Writ of Certiorari should therefore be denied.

Respectfully submitted,

Davin C. Larsen®

Patrick K. Rarrerry

Rutan & Tucker

611 Anton Blvd., Suite 1400

Costa Mesa, CA 92626

(714) 641-5100

Attorneys for Defendants

and Respondents

*Counsel of Record

DATED: September 28, 1988

22 As noted by one California court: “The purpose of .. .

High School, as of any school, is to educate and not... to

provide appellant with a ‘captive audience for speech making,’

to wit: an audience composed of students who are havin

lunch at or about the quad.” Lipkis v. Caveney, 19 Cal. App. 3d

383, 387, 96 Cal. Rptr. 779 (1971).

ee

App. 1

APPENDIX A

RELEVANT STATUTORY PROVISIONS

State of California Education Code Section 44807 pro-

vides :

§ 44807. Duty concerning conduct of pupils

Every teacher in the public schools shall hold

pupils to a strict account for their conduct on the way

to and from school, on the playgrounds or during re-

cess. A teacher, vice principal, principal, or any other

certificated employee of a school district, shall not be

subject to criminal prosecution or criminal penalties

for the exercise, during the performance of his duties,

of the same degree of physical control over a pupil that

a parent would be legally privileged to exercise but

which in no event shall exceed the amount of physical

control reasonably necessary to maintain order, pro-

tect property, or protect the health and safety of

pupils, or to maintain proper and appropriate condi-

tions conducive to learning. The provisions of this

section are in addition to and do not supersede the

provisions of Section 49000.

State of California Education Code Section 48200 pro-

vides:

§ 48200. Children between ages 6 and 18 years

Each person between the ages of 6 and 18 years

not exempted under the provisions of this chapter or

Chapter 3 (commencing with Section 48400) is sub-

ject to compulsory full-time education. Each person

subject to compulsory full-time education and each

person subject to compulsory continuation education

App. 2

not exempted under the provisions of Chapter 3 (com-

mencing with Section 48400) shall attend the public

full-time day school or continuation school or classes

and for the full time designated as the length of

the schoolday by the governing board of the school

district in which the residency of either the parent or

legal guardian is located and each parent, guardian,

or other person having control or charge of the pupil

shall send the pupil to the public full-time day school

or continuation school or classes and for the full time

designated as the length of the schoolday by the gov-

erning board of the school district in which the resi-

dence of either the parent or legal guardian is located.

Unless otherwise provided for in this code, a

pupil shall not be enrolled for less than the minimum

schoolday established by law.

State of California Education Code Section 48907 provides:

§ 48907. Student exercise of free expression

Students of the public schools shall have the right

to exercise freedom of speech and of the press inelud-

ing, but not limited to, the use of bulletin boards, the

distribution of printed materials or petitions, the wear-

ing 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 pro-

hibited 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 commis-

App. 3

sion of unlawful acts on school premises or the vio-

lation 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 for the time,

place, and manner of conducting such activities within

its respective jurisdiction.

Student editors of official school publications

shall be 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 of student publications within each school

to supervise the production of the student staff, to

maintain professional standards of English and jour-

nalism, and to mairitain the provisions of this section.

There shall be no prior restraint of material pre-

pared for official school publications except insofar

as it violates this section. School officials shall have

the burden of showing justification without undue

delay prior to any limitation of student expression

under this section.

“Official school publications” 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 adopt-

ing otherwise valid rules and regulations relating to

oral communication by students upon the premises of

each school.

App. 4

State of California Education Code Section 48930 provides :

§ 48930. Purpose and privileges of student body or-

ganization

Any group of students may organize a student

body association within the public schools with the

approval and subject to the control and regulation of

the governing board of the school district. Any such

organization shall have as its purpose the conduct of

activities on behalf of the students approved by the

school authorities and not in eenflict with the author-

ity and responsibility of the public school officials.

Any student body organization may be granted the

use of school premises and properties without charge

subject to such regulations as may be established by

the governing board of the school district.

State of California Education Code Section 48932 provides:

§ 48932. Authorization for activities by student or-

ganizations; fund-raising

The governing board of any school district may

authorize any organization composed entirely of pu-

pils attending the schools of the district to maintain

such activities, including fund-raising activities, as

may be approved by the governing board.

The governing board of any school district may,

by resolution, authorize any student body organization

to conduct fund-raising activities on school property

during school hours provided that the governing board

has determined that such activities will not interfere

with the normal conduct of the schools.

App. 5

California Administrative Code, Title 5, Section 5552

provides:

5552. Playground Supervision.

Where playground supervision is not otherwise

provided, the principal of each school shall provide

for the supervision by certificated employees of the

conduct and safety, and for the direction of play, of

the pupils of the school who are on the school grounds

during recess and other intermissions and before and

after school.

ae

App. 6

APPENDIX B

RELEVANT SCHOOL BOARD POLICY

AND ADMINISTRATIVE REGULATION

Saddleback Valley Unified School District Board Pol-

icy No. 5133.1 provides:

a. Clubs: School Sponsored 5133.1

Clubs recognized by the Board of Education are

those which are sponsored by the individual

schools of the district. Clubs shall be respons-

ible to the school through which they are organ-

ized,

The club’s charter must be approved by the

Associated Students’ governing body and by the

principal of the school. Membership must be

limited to the students attending the school, and

must be open to all students who meet the quali-

fications and standards of membership set forth

in the club charter. A copy of the charter must

be on file in the principal’s office.

Any organization must be sponsored by a member

of the faculty approved by the principal, deposit

all monies collected and check out all monies

through the school’s financial secretary accord-

ing to school regulations. All elub accounts

shall be audited, have the approval of the spon-

sor for the time and place and all activities car-

ried on by the organization, including regular

meetings. The sponsor must be present at all

meetings and request and receive approval from

the school principal for special social events.

School-sponsored clubs may be permitted to use

official name of the school, to use building and

other facilities, to have publicity in daily bulle-

tins, bulletin boards and school publications, to

wear identifying emblem but not special clothing,

to sell on school premises tickets or bids to special

activities sponsored by the club.

App. 7

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 facilities during the school day are those

which are school sponsored. The school day in-

cludes nonclassroom time.

It is the obligation of the school principal to see

to it that the school-sponsored clubs and organi-

zations are not in any way unlawfully selective or

discriminatory.

Saddleback Valley Unified School District Admini-

strative Regulation No. 5133.1 provides:

a. Clubs; School Sponsored 5133.1

1. Responsibilities of the Principal

(a) Each principal shall be responsible for

developing appropriate procedures for

forming a school-sponsored club. The

steps necessary to form a school-spon-

sored club are to be in writing, and

are to be available in the following loca-

tions:

. The principal’s office

. The activities office (if applicable)

... The student handbook

.. The faculty handbook

(b) The principal is responsible for ensuring

that each school-sponsored club has an ap-

propriate faculty member as the club

sponsor. Voluntary participation by fac-

ulty members as sponsors is encouraged.

No club may function without a sponsor.

(¢)

(d)

(e)

App. 8

The principal shall review and make the

decision to approve or disapprove each

club charter, after the Associated Stu-

dent’s governing body has done so. Each

charter must contain:

. A statement of purpose

..A constitution and/or set of bylaws

. A method for election of officers

.. Qualifications and standards for mem-

bership

All school-sponsored clubs must have a

purpose and conduct activities in compli-

ance with Board Policy 5133.1

The principal shall ascertain that all

clubs sponsored by the school are not un-

lawfully selective nor discriminatory in

membership selection nor in the conduct

of their activities. Any incidence of un-

lawful selection or discriminatory conduct

is to be dealt with by causing the unlawful

practice to cease or by disbanding the

club.

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, lunch, or

other non-classroom time. These clubs or

other organizations may apply through

the appropriate Use of Facility channels

to use school facilities outside of the

school day.

2. Responsibilities of the Sponsor

(a)

Each club sponsor shall be responsible

for:

App. 9

. Attending all meetings of the club

. . Approving all requests for expendi-

tures

. Approving all club activities, includ-

ing location and time

.. Approving all advertising

(b) The sponsor shall inform the principal or

his designee of any significant or poten-

tially significant problems with the club

or individual club members.

3. Freedom of Expression

Nothing in Board Policy 5133.1 nor Admini-

strative Regulation 5133.1 shall be construed

to be in opposition to students’ rights of free-

dom of expression as specified in Education

Code Section 48916* or Board Policy 5145.3

and 6144.1,

* Former Education Code Section 48916 was repealed in 1983.

See, now Section 48907. (Reply App. A at 2-3)