Amicus Curiae Brief — Bender v. Williamsport Area School Dist.

Office - Supreme Court, US.

FILED

4 DEC 18 1984

PP

IN THE CLERK

Supreme Court of the United States

October Term, 1984

MICHAEL BENDER, et al.,

Petitioners

Ve

THE WILLIAMSPORT AREA SCHOOL DISTRICT,

et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

BRIEF AMICUS CURIAE IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

GWENDOLYN H. GREGORY

Counsel of Record

Deputy Legal Counsel

National School Boards Association

1680 Duke Street

Alexandria, Virginia 22314

(703) 838-NSBA

AUGUST W. STEINHILBER

NSBA Associate Executive Director

and Legal Counsel

THOMAS A. SHANNON

NSBA Executive Director

aa eeseen nanan ‘

24,

No. 84-773

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

MICHAEL BENDER , et al.,

Petitioners,

Ve

THE WILLIAMSPORT AREA SCHOOL DISTRICT,

et al.,

Respondents.

CONSENT TO FILING

Counsel for Petitioners and

Respondents have consented to the filing

of the within brief by the National

School Boards Association. Confirming

letters will be filed with the Court.

Respectfully submitted,

GWENDOLYN H. GREGORY

Counsel of Record

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TABLE OF CONTENTS

PAGE

INTEREST OF THE AMICUS CURIAE......-- 1

REASONS FOR GRANTING THE WRIT.....--- 3

I. The Decision Conflicts

with the Equal Access Act... 4

II. The Decision Conflicts

with Other Federal Court

Dee eeeesesoeceocece 9

A. Widmar v. Vincent....... 9

B. Federal circuit decisions

do not resolve the

PreESeNt 1SSUC.. cere eeees

1. The presence of a

religious purpose....

2. Absence of a public

a

3. Impressionability of

school children......

EEE Ee

11

11

14

m

m

pate

eyes ~

he

TABLE OF AUTHORITIES

Cases Page

Abington School District v.

>chemp, 374 Sa ee 203 -. . rr 10

Bender v. Williamsport Area

School District, Petition for

Certiorari at la.wwccecveesecevee PaSsSim

Board of Education v.Pico,

102 S.Ct. 2799 PE Teceeeececee 18,19

Brandon v. Board of Education

of Guilderland Central

School District,

635 F.od 9/1 (2d Cir. 1980),

cert. denied 454 U.S. 1154

Phe UE feng denied,

455 U. (1 1982). eoeeevee 14, 15, + 21

Engel v. Vitale,

Bre Gale GEE Cette ccccccce seeneeee

Lemon _v. kurtzman,

403 U.S. 602 . | eer 12,14,17

Lubbock Civil Liberties Union v.

Lubbock Independent School

District, 669F.2d 1038, reh'g.

denied., 680 F.2d 424 (Sth cH.

» cert. denied,

103 $.ct. 800 (1983). oe 12,34,15,17,21

McCollum v. Board of Education,

333 Bee 203 [CC te eee e bade deees 4

Nartowicz v. Clayton County

School District,

736 F.2d 646 (llth Cir. 1984)...... 13

Tinker v. Des Moines

Independent ety School

stric 9 oe @ — Pere 10

Widmar v. Vincent,

454 U.S. 263

PRUE E 6454600666060 ebeothabOctecet sue

statutes

Equal Access Act, Pub. L.

No. 98-377,

Stat. 98-1302 (1984). eeeeveeeees Passim

42 r+ 1983. e*eeeeee#nee#eene3#eee#ee#e#te#s## 9,23

42 U.S.C. 1988, e*eee4eepte#ee@eeeee2ee#eeee#ee#e#e 9,23

Other Authorities

School officials reject bid by

Christian club, Houston Chronicle,

November 28 1984, e*eeoeeeneeenetee#ree#ee##e#e#e#«# 8

No. 84-773

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

MICHAEL BENDER , et al.,

Petitioners,

Ve

THE WILLIAMSPORT AREA SCHOOL DISTRICT,

et al.,

Respondents.

AMICUS CURIAE BRIEF OF

THE NATIONAL SCHOOL BOARDS ASSOCIATION

IN SUPPORT OF PETITION FOR A

WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

INTEREST OF THE AMICUS

The National School Boards

Association (NSBA) is a nonprofit

federation of this nation's state school

boards associations, the District of

, -2-

Columbia school board and the school

boards of the offshore flag areas of the

United States. Established in 1940, NSBA

is the only major educational

organization representing school boards

and their members. Its membership is

responsible for the education of more

than ninety-five percent of this nation's

public school children.

The subject of whether public

schools must or may grant “equal access"

to student-initiated religious

organizations is a controversial! one

among school board members and_- the

citizens in the communities in which

their school districts are located.

Because of the difference of opinion

among its membership as to whether

student religious groups should be

allowed to meet in the public schools,

aS

NSBA has no policy on the subject. In

the event this Court grants certiorari in

this case, NSBA will not file a brief on

the merits.

Policy differences aside, school

board members across the country need

Quidance from this Court as to the

legal question of whether they have any

discretion in this matter. As the law

now stands, their only safe alternative

is to cease extracurricular activities

altogether in order to assure that none

of the conflicting legal authorities are

violated.

REASONS FOR GRANTING THE WRIT

I. The decision below conflicts with

the recently passed Equal Access

Act, Pub. L. No. 98-377, Stat.

98-1302 (1984).

ste

II. The decision below conflicts with

other federal court decisions on the

subject.

I. THE DECISION CONFLICTS WITH THE

EQUAL ACCESS ACT.

On August 11, 1984, less than three

weeks after the decision in the case at

bar, President Reagan signed into law the

Equal Access Act, Title VIII of PL

98-377.

That Act prohibits a recipient of

federal financial assistance which has a

“limited open forum" from discriminating

against any seconaary school students

“who wish to conduct a meeting .... On

the basis of the religious, political,

philosophical, or other content of the

speech at such meeting.” Id at Sec.

l(a). A school operates a “limited open

forum" if it allows “noncurricul um

-5-

related student groups to meet on school

premises during noninstructional time."

Id at Sec. 1.(b).

As noted above, the Equal Access Act

prohibits discrimination against

religious meetings if the meetings are

held in a “limited public forum." That

forum is present if the meetings meet the

following three requirements: (1)

voluntary and student-initiated; (2)

noncurriculum- related; and (3) held

during noninstructional time. Since al]

three requirements are met in the instant

Case, the decision below conflicts with

the Act.

The decision below found that, in

creating the activities period, the

school board created a “limited public

forum" because: First, the school

district left the subject matter of the

-6-

meetings entirely to the students with

faculty acting only as monitors.

Petition for Certiorari Appendix at 8a

and 26a; Second, the board did not limit

the content to curriculum related

subjects, Id at 19a; and Third, the

meetings were held before the beginning

of class instruction, Id at 8a.

The debate on the Equal Access Act

in both the House and the Senate

attempted to define the third element so

as to exclude Williamsport's activities

period from the Act's coverage. However,

given the clear language of the Act which

defines “noninstructional time" as that

“time set aside by the school before

actual classroom instruction begins or

after actual classroom instruction ends,"

these attempts to distinguish

Williamsport cannot stand.

—— ss

ale

As was pointed out by Senator

Denton, one of the sponsors of the Act:

"CI]Jf the school allows

noninstructional periods before or

after actual classroom

instruction -- which is the term

used -- sometime during the day,

then the school cannot discriminate

against student-initiated groups

who wish to meet voluntarily at that

time, for example, during lunch

periods, open activity periods, and

in schools with staggered schedules

where students are free to meet. I

am willing to let that be subject to

interpretation in the future. But

what it says is actual classroom

instruction. I have heard the term

‘school day’ thrown around in

senatorial comment today but that is

not what this bill says."

After the Act was signed by the

President, the Petitioners requested the

Third Circuit Court of Appeals to

reconsider their decision in light of its

potential conflict with the Act. The

court denied that petition. Petition for

Certiorari Appendix at 64a.

x

Amicus urges this Court, at the

least, to remand this case back to the

court of appeals with direction to

determine whether the Equal Access Act

can be distinguished from the facts here

and, if not, to reconsider its decision

in light of the Act.

It is unfair to school districts

across the country to force them to

subject themselves to liability either by

allowing religious groups to meet,

thereby subjecting themselves to charges

of establishment of religion, or by

refusing to allow them to meet and

waiting for suits by student religious

groups.

It should be noted that this dilemma

not only implicates school districts but

also has personal financial implications

for individual school officials.

He

Students who are refused the right to

meet because of an attempt to avoid

charges of establishment of religion,

could be awarded damages and attorneys

fees, under 42 U.S.C. 1983 and 1988,

against both the school board and

individual school officials on the theory

that the officials have deprived students

of their rights guaranteed by the Equal

Access Act.

Il. THE DECISION CONFLICTS WITH

OTHER FEDERAL COURT DECISIONS

A. Widmar v. Vincent.

Until its decision in Widmar v.

Vincent, 454 U.S. 263 (1981), Supreme

Court decisions on the question of prayer

in the public schools were quite clear.

See, eg, McCollum v. Board of Education,

333 U.S. 203 (1948) (religion classes as

part of school curriculum); _Engel_ Vv.

-10-

Vitale, 370 U.S. 421 (1962)(reciting in

Classrooms prayer written by

state):-Abington School District Vv.

schemp, 374 U.S. 203 (1963) (scripture

reading and reciting Lord's Prayer in

classrooms).

Prior to 1981 school boards could

feel safe in denying the use of school

facilities for religious meetings, even

if other student groups were allowed to

meet.

After Tinker V.! Des Moines

Independent Community School District,

393 U.S. 503 (1969) held that students

have a free speech right in the classroom

and Widmar _v. Vincent, supra, held that

religious speech is equally protected by

the first amendment, school officials

became more uncertain as to their

Obligations with regard to the use of

School facilities by religious groups.

ste

Although courts have distinguished

Widmar on the basis of an “impressionable

child" theory or for other reasons,

nevertheless Widmar remains to support

the Congress in its passage of the Equal

Access Act and to support lawsuits by

religious groups which continue to urge

the opening of schools to their meetings.

B. Federal circuit decisions

do not resolve the present

issue.

Courts that have reached decisions

contrary to Widmar, supra, have done so

on the basis of three different

rationales: 1) the presence of a

religious purpose; 2) the absence of a

public forum in public secondary schools;

and 3) the impressionability of

pre-college age students.

1. The presence of a

religious purpose.

In Lubbock Civil Liberties Union v.

Lubbock Independent School District, 669

EE eee er

-12-

F.2d 1038, reh'g. denied, 680 F.2d 424

(Sth Cir. 1982), cert. denied, 103 S.Ct.

800 (1983), the Fifth Circuit found an

establishment of religion because the

board policy allowing students to gather

before and after school for a variety of

purposes, including religious ones, was

designed to bring religion into the

schools. The court noted that’ the

Lubbock School District had engaged in

certain religious practices such as

scripture reading over the public address

System, teacher led classroom prayer and

Bible distribution since 1971. Thus, the

court found that the policy failed the

first test, i.e., secular purpose, of the

three prong analysis established in Lemon

v. Kurtzman, 403 U.S. 602 (1971).

Recently the Eleventh Circuit

pointed to the school district's overall]

olde

practice of Supporting religious

activities such as religious assemblies

and signs and announcements of church

sponsored events as an important

consideration in upholding the trial

court's grant of a preliminary injunction

prohibiting the district from permitting

a student religious group to meet on

school property after school hours under

faculty - supervision. Nartowicz Vv.

Clayton County School District, 736 F.2d

646 (11th cir. 1984). The court

cautioned, however, that in evaluating

the application for a permanent

injunction, the district court should

assess whether the district has an “equal

access" policy, the extent of faculty

sponsorship and other factors relating to

the creation of a perception in the minds

of the students that the school district

is either "supporting" or merely

“accommodating” religion.

-14-

Clearly, the presence of a religious

purpose does not apply in the instant

case, there being no contention that the

Williamsport School District has a

history of supporting religion that

would taint a policy to allow student

religious groups to meet. If

Williamsport School District were to

adopt ‘such a policy, it would. most

certainly satisfy the first part of the

Lemon test. Thus this distinction cannot

serve as a basis for rasolving the

conflict created between the Third

Circuit's decision and the Equal Access

Act and this Court's ruling in Widmar.

2. Absence of a public forum.

The Fifth Circuit in Lubbock, supra,

and the Second Circuit in Brandon vy.

Board of Education of Guilderland Central

School District, 635 F.2d 971 (2d Cir.

1980), cert. denied 454 U.S. 1154 (1981),

-15-

reh'g. denied, 455 U.S. 983 (1982), held

that the freedom of speech does not

protect the right of student religious

groups to meet on_- school premises.

Thecourt in Brandon, decided prior to

Widmar, supra, that public schools were

not public forums available for the

airing of religious doctrines. Even

after Widmar, courts have had no

difficulty in finding sufficient

differences between high schools and

colleges to justify prohibiting equal

access to religious groups desiring to

meet on public school property. Lubbock,

Supra.

Now, in the appellate court's

decision in Williamsport, the Third

Circuit has held that a public school can

be a “limited public forum" and that to

discriminate against a student group in

o16-

that forum because of the content of

their speech, does raise free speech

implications. Clearly, on this issue

alone, a conflict has emerged between

thecircuits which only this Court can

resolve,

While the lower court opinion in

this regard appears to be consonant with

the congressional mandate in the Equal

Access Act, any illusion of harmony

between the legislative directive and

judicial precedent dissolves in the

court's holding that the establishment

clause considerations outweigh the

Students' free speech rights and

therefore, the school may

constitutionally discriminate against

religious groups.

3. Impressionability of school

children.

As pointed out by Petitioner, the

i9

decision below is not the first to carve

Out an exception to Widmar v. Vincent,

supra, by holding that secondary school

students unlike college students, are

impressionable and unable to understand

that a school board that allows religious

clubs to meet in the school is not

necessarily by that action endorsing the

religious club. See, e.g-., Lubbock,

Supra; Brandon, supra.

The lower court analyzed the facts

at bar in light of the three-part test in

Lemon v. Kurtzman, supra. It held that

although there was a secular purpose in

establishing the activities period, the

“orimary effect" of allowing religious

groups to meet during that time would

enhance religion. The court based its

finding entirely on a belief that

-18-

secondary school students are

impressionable and that the board would

send a “message of government endorsement

of religion" by permitting student

religious groups to meet in the school.

On the issue of whether the

impressionability of secondary age

Students should give rise to a different

first amendment standard in determining

whether a public forum exists, even the

decisions of this Court may raise

conflicting signals for school boards.

For example, the decision below cites

Board of Education v. sem. 102 $.€¢.

2799 (1982) in support of its contention

that Widmar does not apply at the

secondary level, because at that level

“emphasis is placed more on a structured

program ‘for inculcating fundamental

values necessary to the maintenance of a

eis

-19-

democratic political system.'" Petition

for Certiorari Appendix at 17a.

However, the plurality opinion in

Pico distinguished between first

amendment constraints in the classroom

where the school board could be said to

have “unfettered discretion to inculcate

community values” through the selection

of textbooks, and the school library

which is completely voluntary and where

the choice of books is “entirely a matter

of free choice” of the students. Board

of Education v. Pico, supra at 2809.

Although no definitive principles were

annunciated@ in Pico, there is certainly

Support in the plurality opinion for the

proposition that the “impressionability”

Standard does not apply outside the

classroom, where students are engaged in

purely voluntary activities.

-20-

While the circuit court decisions on

equal access seem consistent in result,

i.e. in upholding the refusal of school

districts to grant permission to student

religious groups to meet on public school

premises, there in fact exist significant

differences that warrant definitive

resolution by this Court. In the instant

case, the lower court emphasized that the

“activities period" at issue occurred

during the time when Students are

required to be in school. Petition for

Certiorari at 28a and 43a, footnote 30.

Careful analysis of the decision

indicates that it might have been

dififerent had the activities period been

held before the school day begins. Other

cases, however, have held the

establishment clause to be implicated

even when the religious meetings are held

£

-21l-

before the school day begins. See, @.g.,

Brandon Ve Board of Education of

Guilderland Central Schools, supra. As

indicated above, the Equal Access Act has

done nothing to resolve this question,

and may in fact only add legislative

confusion to the judicial fray.

Perhaps more importantly, the lower

court decision here, unlike the other

cases finding establishment clause

violations, recognizes a valid free

speech right in permitting student

religious groups to meet on public school

property. Neither Brandon nor Lubbock,

Supra, confronted this Court with such a

direct clash between the first amendment

right to free speech and the

constitutional prohibition against state

establishment of religion. That this

Court settle this confrontation has

«22.

become more urgent since the passage of

the Equal Access Act.

CONCLUSION

School boards and school

administrators are becoming used to

treading narrow legal lines where the

State of the law is less than ~* "ear.

Through an excess of cautic h can

usually obey the law while accomplishing

their educational mission. Here that may

be impossible. Even were the case law

completely clear, now that the Congress

has passed a law enunciating a federal

right, school people cannot defend a suit

by a religious group which has been

refused the right to meet on- school

grounds on the basis that extant case law

prohibits that action. They must decide

whether to risk violating the federal

o23-

statute, and thus risk a judgment for

damages and attorneys' fees under 42

U.S.C. 1983 and 1988 or to comply with

the statute and risk an injunction

because of a court finding of an

establishment of religion violation.

Whereas in the past religious groups

may have been reluctant to file suits

given the weight of the case law against

them, the passage of the Equal Access Act

may encourage them to file suit where

school boards continue to follow judicial

precedent. Until this Court definitively

decides this issue or at least remands

the case to the Third Circuit Court of

Appeals for its reconsideration in light

of the Equal Access Act, the law will

-24-

remain unclear to the benefit of no one,

except perhaps attorneys.

Respectfully submitted,

Gwendolyn H. Gregory

Counsel of Record

Deputy Legal Counsel

National School Boards Association

1680 Duke Street

Alexandria, VA

(703) 838-6712

August W. Steinhilber

NSBA Associate Executive Director

and Legal Counsel

Thomas A. Shannon

NSBA Executive Director