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

Office-Supreme Court, U.S

rELES

No. 84-773 MAY 6 1985

—~ 20 we ww /

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

MICHAEL BENDER, ef ai.

Petitioners,

v.

THE WILLIAMSPORT AREA SCHOOL DISTRICT, ez ai.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

BRIEF OF KIWANIS INTERNATIONAL AND

KEY CLUB INTERNATIONAL AS AMICI CURIAE

PARTIALLY IN SUPPORT OF RESPONDENTS

AND PARTIALLY IN SUPPORT OF

NEITHER PARTY

STANLEY C. FICKLE

Counsel of Record

of

BARNES & THORNBURG

1313 Merchants Bank Building

11 South Meridian Street

Indianapolis, Indiana 46204

Telephone: (317) 638-1313

Pandick Midwest, Inc., Chicago © 454-7600

TABLE OF CONTENTS

INTEREST OF KIWANIS INTERNATIONAL AND

KEY CLUB INTERNATIONALL................cccssssssssseees

SUMMARY OF ARGUMENT ................ccccsscssseseseeeseees

RTD ctpetintasitinnioniiinimrmnenienstenmneiainmmnmnen

I.

II.

Local School Authorities Have Broad Discretion

To Allow Different Types Of Student Activities

Without Creating A Public Forum Under The

Pe BEE eciitnieiscnssiiinnsiiininentetetesditeidinnnanes

A. This Court’s Public Forum Doctrine Does

Not Require The “Curriculum-Related”

Standard Imposed By The Court Of Ap-

B. Local School Officials May Distinguish

Among Student Activities Based Upon

Judgments As To Their Relative Educatio-

nal Value Or Relationship To The General

Objectives Of The School ..................:eseeeeees

C. Local School Officials May Also Dis-

tinguish Among Categories of Student Ac-

tivities Based Upon Judgments As To Their

Compatibility With The Educational Pro-

cess And May Preclude Contentious And

Emotion-Provoking Activities On This

D. Widmar v. Vincent Does Not Assist Reso-

lution Of The Public Forum Issue In The

Context Of A High School’s Student Activi-

Given The Intervening Enactment Of The Equal

Access Act And Its “Noncurriculum Related”

Standard, This Court Should Not Follow The

Court Of Appeals’ Speculations On

“Curriculum-Relatedness” In This Case Which

Is Not Properly Framed For Resolution Of That

PAGE

13

18

22

il

TABLE OF AUTHORITIES

PAGE

Cases

Bender v. Williamsport Area School District, 741

Fe Foe (SEC GEE ..cereseentiade 2-4, 7-8,

11, 16,

23

Board of Education v. Pico, 457 U.S. 853 (1982).... 14-15, 21

Grayned v. City of Rockford, 408 U.S. 104(1972).. 9

Greer v. Spock, 424 U.S. 828 (1976) .......ccccccccceceeeeee 10

Guzick v. Drebus, 431 F.2d 594 (6th Cir. 1970),

cert. denied, 401 U.S. 948 (1971) cece 20-21

Hughes v. Caddo Parish School Board, 57 F. Supp.

508 (W.D. La. 1944), aff'd, 323 US. 685

€ FIGS ) nrcsssnnsessssveiqnannndesseqnensiesaitinnindiaaaamananeas 19

Jarman v. Williams, 753 F.2d 76 (8th Cir. 1985)... 12

Lehman v. Shaker Heights, 418 U.S. 298 (1974)... 10

Perry Education Ass’n v. Perry Local Educators’

Pg YOO ae 9-12, 17,

21,22

Plyler v. Doe, 457 U.S. 202 (1982) ....cecccccccccceceeseeee 15

Tinker v. Des Moines Independent Community

School District, 393 U.S. 503 (1969) 0. 21

United States Postai Service v. Council of Green-

burgh Civic Ass’ns, 453 U.S. 114 (1981)....0..000.... 9

Waugh v. Board of Trustees, 237 U.S. 589 (1915)... 19

Widmar v. Vincent, 454 U.S. 263 (1981) .........0..00.. 22

Statutes

20 U.S.C.A. § 4071-4074 (Cum. Supp. 1985)......... 4

20 U.S.C.A. § 4071(a)-(b) (Cum. Supp. 1985)..... 23

20 U.S.C.A. § 4071(b) (Cum. Supp. 1985) ............ 4

20 U.S.C.A. §§ 4071(b), 4072(4) (Cum. Supp.

ill

PAGE

Other Authorities

130 Cong. Rec. H. 7732 (daily ed. July 25, 1984)... 24

130 Cong. Rec. S. 8342 (daily ed. June 27, 1984)... 24

130 Cong. Rec. S. 8353 (daily ed. June 27, 1984)... 13

Diamond, The First Amendment And The Public

Schools: The Case Against Judicial Intervention,

59 Tex. L. Rev. 477 (1981 ) ..........eccccceeseeeeeeereeeeees 18-19

Schauer, “Private” Speech and the “Private” Fo-

rum: Givhan v. Western Line School District,

1979 Sup. Ct. Rev. 217 .......ccccesseesseeeseeseeeseesenseneees 24

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1984

MICHAEL BENDER, et al,

Petitioners,

v.

THE WILLIAMSPORT AREA SCHOOL DISTRICT, et ai.,

| Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

BRIEF OF KIWANIS INTERNATIONAL AND

KEY CLUB INTERNATIONAL AS AMICI

CURIAE PARTIALLY IN SUPPORT OF

RESPONDENTS AND PARTIALLY IN

SUPPORT OF NEITHER PARTY

INTEREST OF KIWANIS INTERNATIONAL

AND KEY CLUB INTERNATIONAL'

As framed and decided in the courts below, this case

presents two distinct questions: (1) Whether the petitioner high

school students have a right under the Free Speech Clause of

the first amendment to engage in their religious activity on the

ground that the high school’s student activity period constitutes

1 Kiwanis International and Key Club International have re-

ceived the written permission of the parties to file this brief as amici

curiae, anc these consents have been sent to the office of the Clerk for

filing.

2

a “public forum;” and, (2) if the claimed free speech right is

found, whether the Establishment Clause requires that petition-

ers nonetheless be denied access to the high school’s activity

period. Amici Kiwanis International and Key Club Inter-

national have no interest in the Establishment Clause issue, but

they have two interests in the predicate “public forum” issue.

First, the Court of Appeals’ opinion asserts that high school

Key Clubs are “not curriculum-related.”2 Since the recently-

enacted Equal Access Act includes a similarly worded standard,

if this Court were to repeat that assertion amici could find their

groups excluded from many high schools. Second, the Court of

Appeals’ analysis of the constitutional free speech issue in this

case could force school officials to exclude Key Cluts from high

schools in order to avoid creating a wide-open public forum.

Kiwanis is an organization devoted to the principle of

community service and the development of intelligent and

active citizenship. Kiwanis International represents local Ki-

wanis Clubs in more than 8,000 communities throughout the

United States and many other countries. Key Club Inter-

national, an association under the ultimate control of Kiwanis

International, represents local Key Clubs, which are organiza-

tions of and for high school students.

Key Clubs are sponsored by local Kiwanis Clubs and may

be organized at a high school only with the approval and

expressed desire of the school officials to have a club at the

school. Through the guided initiative and active participation

of high schooi students, Key Club works to promote community

service and to develop leadership and active citizenship. Local

2 Although it did not advert either to the courses offered at the

Williamsport High School or to the specific activities of that Key Ciub,

the Court of Appeals stated that “Key Club, a service and community

organization, has little direct relevance to normal course offerings.”

Bender v. Williamsport Area School District, 741 F.2d 538, 549 n.18

(3d Cir. 1984).

3

Key Clubs develop and conduct educational programs in

leadership, civics and citizenship, and also engage directly in

community service activities. Particular service activities may

be in support of the operation of the high school$ or of the

broader community.4 Key Club is the largest student organiza-

tion of its kind and has a highly developed district, national and

international structure, over 3,600 active local clubs and more

than 107,000 student members.

The interests of amici Kiwanis International and Key Club

International are directly affected by the resolution of the

predicate free speech issue in this case. The Court of Appeals

relied .n particular upon the presence of the Key Club at the

Williamsport High School, together with certain others such as

the Chess Club, in determining that the respondent school

officials had created a “public forum” activity period, thereby

mandating a first amendment right of access for student

activities other than those approved by respondents. See

Bender v. Williamsport Area School District, 741 F.2d 538, 543-

44 & n.8, 548-49 & n.18 (3d Cir. 1984).

So far as the “public forum” issue is concerned, the

religious nature of petitioners’ speech is entirely fortuitous. The

3 Typical school-related services include school assemblies deal-

ing with drug and alcohol abuse, suicide, stress, divorce and child

abuse, Career Day and vocational guidance, Campus Clean-up, anti-

vandalism and anti-cheating campaigns, and providing college schol-

arships to outstanding graduating seniors. Key Clubs are encouraged

to tailor programs to address the individual needs of their schools, and

school-related services can take a nearly infinite variety of forms. In

one Indiana community, for example, the Key Club raised the funds

for and is responsible for servicing and maintaining the large sign in

front of the high school informing the public of current school

activities.

4 Typical community-related activities include voter registration

and transportation programs, alternative latch-key programs for

children of working parents, nursing home visitation and other

services to enhance the lives of the elderly and handicapped, and

working with established charitable organizations.

4

principles governing the free speech claim would be identical

whether the claim is asserted by these petitioners or by students

wishing to engage in speech and related activity of other sorts,

including partisan political, extremist, and counter-cultural ac-

tivities. Under the Court of Appeals decision, so long as a court

can discern a connection between the student activity for which

access is sought and some “promot{ion of] the intellectual,

physical or social development of the students,” 741 F.2d at

549 — which under ordinary first amendment doctrine would

necessarily include speech and related activity of any sort that is

not affirmatively illegal — local school authorities must permit

it if they permit a Key Club or other activity the court believes

is not “directly related to a particular curricular offering... .”

Id. Thus, local school officials not wishing to lose control over

their student activity periods may decide to exclude Key Club

and comparable activities.

The interests of these amici are potentially affected in

another respect as well. Under the Equal Access Act, 20

U.S.C.A. §§ 4071-4074 (Cum. Supp. 1985), which was enacted

after the record in this case was framed and the issues decided,

a school’s activity period is deemed a “limited open forum” if a

“noncurriculum related student group” is permitted to meet

during “noninstructional time.” Jd., § 4071(b). The legislative

history of the Act indicates, however, that school authorities

have discretion to determine in view of local conditions whether

particular student activities are “noncurriculum related.” Need-

less repetition by this Court of the Court of Appeals’ specula-

tion’s on “curriculum-relatedness” as a legal stancard or its

generic conclusion that Key Club is “not curriculum-related”

would adversely affect the interests of amici under the Equal

Access Act, hindering if not foreclosing the willingness of school

administrators to exercise their discretion and determine this

issue according to the particular school’s curriculum, the activi-

ties of the particular Key Club, and other local factors.

5

SUMMARY OF ARGUMENT

The Court of Appeals erred in finding a free speech right

of access to a high school’s student activity period. As this

Court’s precedents establish, the government may permissibly

distinguish among subject matter categories of speech in a

nonpublic forum, and a public forum is created only if made

generally available for public use. Neither the particular

student activities <pproved at this high school nor a trans-

gression of the Court of Appeals’ “curriculum-related” standard

demonstrates the open and indiscriminate use required to create

a public forum. Local school authorities may allow selective

access to types of activities based upon their relationship to the

general operation of the school without converting an activity

period into a public forum for students.

The most serious error in the Court of Appeals’ “public

forum” analysis is its insensitivity to the character and needs of

secondary school education. As this Court has recognized, the

nature of the educational process requires that local school

officials constantly make judgments about the relative

educational worth of subjects and materials, and their con-

sistency with community values. This is as true for the student

activity period as for the rest of the school day. Even when

students are given the initiative in choosing activities, school

officials retain authority to decide whether particular activities

are of sufficient educational value or are otherwise beneficial to

the students and the school.

The question is not, as the Court of Appeals apparently

thought, whether a court “considers” an unapproved activity to

be beneficial to the students’ development or comparable to

another activity which has been approved. The question is

whether local education officials believe that is so. The

activities approved = this case do not show that the local

officials had forefeited their responsibility to make these deci-

sions on a case-by-case basis, and the Court of Appeals’

“curriculum-related” criterion for a “public forum” undermines

the discretion of local officials for no valid first amendment

6

reason. Under that criterion, school officials must either

exclude student activities they believe to be educationally

beneficial, or lose to a student-controlled “public forum” their

authority to make such judgments altogether.

Local officials must also have authority to exclude con-

tentious and emotion-provoking student activities that would

undermine the educational mission of the school. Although

perhaps constrained by a prohibition on viewpoint dis-

crimination, local educators may properly exclude categories of

controversial activities that would, in their professional judg-

ment, distract student attention and be disruptive to learning

during other parts of the school day. No valid reason appears

why this authority should be lost merely because school officials

allow particular activities that go beyond a court’s view of a

“curriculum-related” line.

Given the subsequent enactment of the Equal Access Act,

this Court should not repeat the Courts of Appeals’ speculations

as to the nature and type of student activities that meet a

“curriculum-related” standard. The statute is not before the

Court, the statutcry standard may well be different than the

constitutional one used by the Court of Appeals, and this case is

not factually framed for adjudication of such issues.

>

ARGUMENT

I. Local School Authorities Have Broad Discretion To Al-

low Different Types Of Student Activities Without Creat-

ing A Public Forum Under The First Amendment.

The Court of Appeals offered three related reasons for

holding that the student activity period at the Williamsport

Area High School constituted a limited public forum. First,

although there was no written or formal policy governing

approval of student activities, the high school principal stated in

a summary judgment affidavit that an activity would be

allowed if it “‘contribute[s] to the intellectual, physical or

social development of the students and is otherwise considered

legal and constitutionally proper.’ ” 741 F.2d at 544, 548. The

court treated the principal’s statement as if it were a statute and

uséd it against the respondents, saying that this standard is “so

broad that virtually any program which can be said to benefit

the development of the students is permissible ....” Jd. at 549-

50. Second, in the memory of the principal, no student club or

activity had been denied school sponsorship until the petitioners

in this case. Jd. at 543, 548. Third, the court viewed several of

the approved activities as not “directly related to a particular

curricular offering”, id. at 549, and this lack of “curriculum-

related[ ness ]” confirmed the breadth of the “forum” the school

had created:

For instance, Key Club, a service and community organi-

zation, has little direct relevance to normal course offe-

rings. Likewise, the Chess Club, the Aviation Club, and

the Office Aides, among others, have at best only a

tangential relation to a high school course of study.

While it might be said that each of these activities

enhances the curricular goals of the school by promoting

civic awareness (the Key Club), logical thought (the

Chess Club), practical applications of scientific principles

(Aviation Club) or a general sense of responsibility ( Of-

fice Aides), the same extended chain of reasoning could be

used to justify religion as a promoting of civic, social, and

8

intellectual valucs. Thus, the roster of activities approved

in the past reveals no more restrictive limitation on the

activity period than that which has been articulated, i.e.,

that clubs promote the “intellectual, physical, or social!

development of the students.”

741 F.2d at 549 n.18.

The Court of Appeals apparently could see no middle

ground between allowing only clubs “directly related to a

particular curricular offering” and allowing any activity which,

in the court’s view, “can be said to benefit the development of

the students.” In essence, because the high school had allowed

activities such as Key Club and Chess Club, it had created a

limited public forum which must be made available to any

student-desired speech and related activity that might be

viewed as “promot[ing] the ‘intellectual, physical or social

development of the students.’ ”

That reasoning and result obviously cannot be limited to

the religious speech and activity involved in this case, and the

draconian consequences that necessarily follow for the authority

of local school officials should not be overlooked. By ignoring

the middle ground, the Court of Appeals’ reasoning forces local

authorities either to limit student activities to those a court

thinks are directly related to existing courses, or to permit any

and all manner of speech and related activity that students

desire to engage in, save only that it be legal. Quite apart from

any Establishment Clause issues in this case, the Court of

Appeals’ analysis would require a school with a Key Club or

Chess Club to allow also a student-initiated Nazi party, Com-

munist cell, Ku Klux Klan sect, or drug use, sexual liberation or

any other countercultural advocacy group that confined its in-

school activities to legal speech and conduct. Under ordinary

first amendment principles, a federal court could not say that

any such speech and activity would not “benefit the devel-

opment” of students while other forms of speech or advocacy

would.

9

The public forum doctrine does not require local school

officials to make this stark choice between either confining

student activity to “curriculum-related” activities or permitting

virtually any student speech activity. Moreover, while federal

courts may not be able to distinguish between categories of

lawful speech, local education officials may indeed distinguish

between types of student activities by making — as their

everyday duties require — reasonable educational judgments as

to what will “benefit the development” of high school students.

That lawful discretion of local officials does not evaporate

merely because they determine that activities such as Key Club

or Chess Club will be beneficial.

A. This Court’s Public Forum Doctrine Does Not Re-

quire The “Curriculum-Related” Standard Imposed

By The Court Of Appeals.

As a general rule, “[t]he state, no less than a private

owner of property, has power to preserve the property under its

control” and to regulate its use. United States Postal Service v.

Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 129-30

(1981). Under the “public forum” doctrine, however, there are

two exceptions. The first consists of places such as public

sidewalks and parks “which by long tradition or government

fiat have been devoted to [public] assembly and debate... .”

Perry Education Ass’n v. Perry Local Educators’ Ass'n, 460 U.S.

37, 45 (1983). This exceptioa is not involved here, however,

because unlike traditional public forums, the Court has never

“suggested that students, teachers, or anyone else has an

absolute constitutional right to use all parts of a school building

or its immediate environs for . . . unlimited expressive pur-

poses.” Grayned v. City of Rockford, 408 U.S. 104, 117-18

(1972). The second exception is where the government has in

fact created a public forum by making it “generally open to the

public even if it was not required to [do so] in the first place.”

10

Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S.

at 45 (emphasis added ).5

In the case of a “public forum,” the government ordinarily

may not regulate or prohibit speech on the basis of its content.

Otherwise, however, the government may reasonably dis-

tinguish on the basis of categories of subject matter, and it is

forbidden only from acting to “suppress expression merely

because public officials oppose the speaker’s view.” Perry

Education Ass’n, 450 U.S. at 46, 49. See, e.g., Greer v. Spock,

424 U.S. 828 (1976) (absent a public forum, government may

discriminate between partisan political and other speech);

Lehman v. Shaker Heights, 418 U.S. 298 (1974) (absent a

public forum, government may discriminate between com-

mercial and other speech ).

Perry Education Ass’n makes plain the government’s power

to distinguish between subject matter categories of speech in a

nonpublic forum, and also that a public forum is not created

unless the government makes it “generally open” and available

for “indiscriminate [ public] use.” 460 U.S. at 45, 47 (emphasis

added). Perry rejected the argument that a public school

system's internal mail system had become a public forum

merely because certain “outside organizations such as the

YMCA, Cub Scouts, and other civic and church organizations”

had used it with school officials’ permission. “This gpe of

selective access does not transform government property into a

public forum.” Id. at 47 (emphasis added). Moreover, any

right of access created by the selective access “would in any

event extend only to other [groups] . . . of similar character.”

Id.-at 48 (emphasis added). Even mechanical application of

these principles shows that the Court of Appeals’ “curriculum-

related” line for distinguishing between a “public forum” and a

“nonpublic forum” student activity period is meritless, and that

no public forum was created on the basis of the evidence that

5 Of course, the public forum created may be a limited one, see

Perry Education Ass'n, 460 U.S. at 46 n.7, as the one found by the

Court of Appeals here would be limited to the high school’s students.

11

the court recites in this case.®

First, the list of student groups and clubs that had been

approved for the activity period in this case simply does not

show that the activity period was “generally open” and avail-

able for “indiscriminate use” by the students.” Just as the

selective access (with prior permission) by the YMCA or other

“civic groups” to the mail system in Perry Education Ass'n was

insufficient to show creation of a public forum constitutionally

mandating access for the plaintiff labor organization, so too the

presence of the “Aviation Club” or the “Office Aides” does not

establish the creation of a public forum constitutionally manda-

ting access for, say, partisan political student groups, let alone

more extreme sorts of student activities that the “public forum”

conclusion would require.

Second, the obviously imprecise relationship between the

groups selectively allowed access in Perry Education Ass'n

6 There is no hint in this case of the prolem that divided the

Court in Perry Education Ass’n — whether the challenged denial of

access represented discrimination based upon hostility to the speaker’s

point of view.

7 As stated by the Court of Appeals, in this case:

[S]tudent clubs which are currently active include: Student

Government; Key Club (a student service organization per-

forming community work ); Class Organizations ( officers for each

class); Business English Club; Future Homemakers of America

(devoted to learning good home practices and providing service

to various charity organizations); Vocational Technical Club;

Spanish Club; Speech and Drama Club; Ecology Club; The

Cherry & White (student literary art magazine ); Billtown Banner

(student newspaper); La Memoire (student yearbook); Band;

Choir; Office Aides ( assisting in filing, answering telephones, and

running errands).

Other clubs which have been approved in the past and

might be renewed if interest warranted are the Archery; Art;

Audubon; Aviation; Bowling; Chemistry; Chess; Field, Forest

and Stream; Future Nurses; Future Teachers; German; Poetry;

Photography; and Ski Clubs. App. at 367. (Affidavit of

Principal W. Newton).

741 F.2d at 543-44 n.8.

12

shows that no fixed or articulated boundary, such as the Court

of Appeals’ “curriculum-related” standard, is required to avoid

“public forum” status. As in Perry, local school officials may

make reasonable judgments on a case-by-case basis about the

relationship between particular groups and the school’s genera/

mission. They could, for example, reasonably decide that Key

Club as a student activity accords with the school’s general

objectives in ways that some other group does not. This could

be based on a relationship between the school’s general obliga-

tion to instruct in citizenship and Key Club’s teaching of civic

responsibilities, or a relationship between the school’s general

need for resources and a particular Key Club’s fund raising or

provision of student volunteers to support a given school

activity. See n. 3, supra.

On the authority of Perry Education Ass’n, the Eighth

Circuit has properly rejected a “public forum” claim in a

context that necessarily refutes the Third Circuit’s “curriculum-

related” standard in this case. Jarman v. Williams, 753 F.2d 76

(8th Cir. 1985). There, school authorities had permitted

relatively widespread access to the school’s gym during non-

school times. However, the facilities had

been used only by certain groups that seem[ed to the

court] ... to be school-related in the broad sense: karate

instruction, gymnastics, piano lessons, Booster Clubs, the

Boy Scouts and the Girl Scouts. Requests by a church to

use school facilities for a revival, and by someone who

wanted to use the school facilities to conduct a flea market

were turned down.

753 F.2d at 79 (emphasis added). On the basis of the decision

on similar facts in Perry, the Eighth Circuit held that the school

gym had not been converted into a public forum “obligat{ ing]

the school board to allow [it] . . . to be used for any other

purpose protected by the First Amendment.” Jd.8

8 The recent enactment of the Equal Access Act has not mooted

(footnote continued on following page)

13

B. Local School Officials May Distinguish Among Stu-

dent Activities Based Upon Judgments As To Their

Relative Educational Value Or Relationship To The

General Objectives Of The School.

Mechanical application of doctrine aside, by far the more

serious error in the Court of Appeals’ “public forum” analysis is

its insensitivity to the character and needs of secondary schoo!

education. In this context, the real “public forum” question is

whether the school officials have relinquished their authority to

evaluate and distinguish among different student activities in

terms of relative educational benefit or other relevant criteria.

It is, of course, highly improbable that school authorities would

actually do this, at least in the case of activity periods during

compulsory attendance hours. Why, if all educational control

has been abandoned, should school attendance at that time be

(footnote continued from previous page)

the constitutional issue presented in this case. First, although that

legislation uses a “noncurriculum related” standard to attach a ght

of access, the statutory standard appears to be more deferential to the

judgment of local school officia)s on this issue than the constitutional

one applied by the Court of Appeals in this case. See Part Il, infra.

Second, the coverage of the Equal Access Act is limited to

“noncurriculum related student groups” meeting during

“noninstructional time,” which is defined as “time set aside by the

school before actual classroom instruction begins or after actual

classroom instruction ends,” 20 U.S.C.A. §§ 4071(b), 4072(4),

whereas the constitutional “pubiic forum” claim is not so limited.

Moreover, although the issue is not presented to the Court in this

case, the “noninstructional time” limitation on the Act’s coverage may

be far more significant than the United States has suggested to the

Court. See Brief For The United States As Amicus Curiae at 3 n.2. In

the highly significant Senate debate on the final version of the Act,

one of its co-sponsors flatly stated that the statute had been limited so

it would not apply to student activit... during times of compulsory

school attendance, including homeroom periods ( which are the facts

of the activity period in the instant case). See 130 Cong. Rec. S. 8353-

$4 (daily ed. June 27, 1984) (colloquy between Senators Packwood

and Metzenbaum).

14

compulsory at all? In any event, the first amendment does not

force local officials to choose between either excluding all

activities that are not directly “curriculum-related” or else

abandoning altogether their control over the subject matter of

student activities.

As this Court “has long recognized,”

local school boards have broad discretion in the manage-

ment of school affairs... . [The Court has] reaffirmed

that, by and large, “public education in our Nation is

committed to the control of state and local authorities”. . .,

that federal courts should not ordinarily “intervene in the

resolution of conflicts which arise in the daily operation of

school systems,” ... [and has] “repeatedly emphasized

... the comprehensive authority of the States and of school

Officials ... to prescribe and control conduct in the

schools.”

Board of Education v. Pico, 457 U.S. 853, 863-64 (1982)

(plurality opinion) (citations omitted). Accord, id. at 891

(Burger, C. J., dissenting), id. at 894 ( Powell, J., dissenting).

Moreover, given the nature of the task of education, which

includes socialization of children no less than the imparting of

information, and “‘inculcating fundamental values necessary to

the maintenance of a democratic political system,” the Court

has agreed

that local school boards must be permitted “to establish

and apply their curriculum in such a way as to transmit

community values” and that “there is a legitimate and

substantial community interest in promoting respect for

authority and traditional values be they social, moral or

political.”

Pico, 457 U.S. at 864 (plurality opinion) (citations omitted ).

Accord, e.g., id. at 876 ( Blackmun, J., concurring in part and in

judgment) (“[b]ecause of the essential socializing function of

schools, loca! education officials may attempt ‘to promote civic

virtues’... and to ‘awake[n] the child to cultural values’ ”’)

(citations omitted ); id. at 889 ( Burger, C. J. dissenting); id. at

15

896 (Powell, J., dissenting); id. at 909 (Rehnquist, J., dis-

senting); Plyler v. Doe, 457 U.S. 202, 221-23 (1982).

These two salient characteristics of public education

— local community control and the value-laden nature of the

process — require school officials constantly to make decisions

distinguishing among values, subjects and materials in terms of

both perceived educational benefit and relationship to the

particular school’s general philosophy and specific operations.

The need for these judgments is no less in the area of student

activities than for any other part of the students’ school day.

And whether school officials allow for student choice over a

wide range of activities or rigidly prescribe a narrow approved

list, those officials’ authority and responsibility for ultimate

approval of all activities still require the same sort of judgments

about relative educational worth and the local school’s general

mission.

Of necessity, . . . secondary educators must separate the

relevant from the irrelevant, the appropriate from the

inappropriate. ... This winnowing process necessarily

leaves much information to be discovered by students at

another time or in another place, and is fundamentally

inconsistent with any constitutionally required eclecticism

in public education.

Pico, 457 U.S. at 914 (Rehnquist, J., dissenting).

Moreover, the fact that students are given the initiative and

allowed a broad range of choice in activities provides no reason

— and certainly no constitutional reason — for saying that

school officials must then forego altogether their ultimate

responsibility to decide which matters are of sufficient

educational value to deserve a student’s time at school. Even

where officials articulate a broad standard of permissibility,

such as the high school principal’s statement in this case, the

breadth does not show they have abandoned their responsi-

bility for making difficult decisions on the boundaries. If the

articulated policy is broad or imprecise, that may indicate only

that hard questions have not arisen before.

16

The Court of Appeals’ “public forum” analysis, however,

effectively prohibits local school officials from making these

sensitive and discretionary judgments. The court first quotes

the respondent school principal’s description of his practice as

approving “ ‘any student activity or club which is considered to

contribute to the intellectual, physical or social development of

the students... .”” 741 F.2d at 548 (emphasis deleted in part).

It then decides that an open forum has been created because the

court cannot distinguish between activities that have been

approved and others that might “be said” to achieve the same

results. Jd. at 549 & n.18. In terms of the principal’s

description of his practice quoted by the court, however, the

issue is not whether the court “ consider{s]” an activity to

“contribute” to educational development but whether the re-

sponsible local school official considers it to do so.

At least in the absence of viewpoint discrimination, it is up

to school officials to judge which proposed student activities will

“contribute to [students’]} intellectuai, physical or social devel-

opment,” particularly as those criteria are implicitly modified

by the officials’ understanding of the individual school, school

system and community. It is simply immaterial whether a court

sees “little direct relevance” between a Key Club and “normal

course Offerings” or “only tangential relation” between the

Office Aides and “‘a high school course of study,” or a greater or

lesser degree of such relationship between those activities on

the one hand and petitioners’ proposed religious activities on

the other.

Given the responsibility of local school officials to make

choices both among alternative educational values and among

competing ways to serve the values chosen, the Court of

Appeals’ “curriculum-related” public forum standard is particu-

larly untenable. That standard destroys in the area of student

activities — and for no discernible reason — the ability of local

school authorities to perform their function. Either they dare

not allow any activity that may lie beyond a court’s perception

a

a ee

17

of a “curriculum-related” line, no matter how beneficial school

officials judge the particular activity to be, or they lose control

over student activities altogether and must acquiesce in what-

ever students may think is the “best” use of their school activity

time. The courts below identified no reason why the first

amendment would require that Hobson’s choice.

These amici further suggest that far more should be

required to create a public forum in a high school activity

period than is presented here. The list of familiar high school

student activities that had been approved in this case, see n. 7,

supra, does not permit a fair inference that this school principal

had abandoned in the area of student activities his responsi-

bility to make educational choices for che students. The fact

that activities such as Key Club, Chess Club and Office Aides

had been approved does not show — as would be required for

a public forum — that a student Nazi Party, a “repeal-the-

drug-laws” group, or even the Young Republicans would have

been approved. For all that-appears in the lower court

opinions, and doubtless the fact of the matter, such issues

simply had never previously arisen.9

9 The principal’s standard (as articulated in his affidavit on a

summary judgment motion) is broad, but that breadth may simply

reflect the fact that few, if any, difficult judgments had been required.

Hard choices could refine that standard further. Most important,

there is no suggestion in this case that respondents were employing a

broad standard to shield discrimination based on their hostility to

particular ideas or a particular viewpoint.

Similarly, the fact that no previously suggested activity had been

disapproved does not prove that a public forum had been established.

Indeed, in any situation where the government has allowed limited

access but has not created a public forum, some group will necessarily

be the first to be denied access and it obviously cannot claim special

rights based on that happenstance. See, e.g., Perry Education Ass'n,

460 U.S. 37, where so far as appears from the Court’s opinion the

plaintiff labor organization was the first group to be denied access to

the school’s internal mail system.

18

C. Local School Officials May Aiso Distinguish Among

Categories Of Student Activities Based Upon Judg-

ments As To Their Compatibility With The

Educational Process And May Preclude Contentious

And Emotion-Provoking Activities On This Ground.

In addition to exercising judgments with respect to the

educational value of proposed activities, school officials must

also have discretion to exclude categories of secondary school

student activities where they believe the controversial nature of

the subject matter and consequent emotional distractions and

psychological stresses would be at odds with the educational

mission of the school. The fact is that “in the public school

context, perhaps no one, but certainly not the judiciary, can

readily ascertain the mental or emotional state that is necessary,

appropriate, or desirable for learning to take place.”” Diamond,

The First Amendment and The Public Schools: The Case

Against Judicial Intervention, 59 Tex. L. Rev. 477, 486 (1981).

However difficult that judgment is to make, it is one that must

be left to local educators and this is as true for a student activity

period as for the rest of the school day.

Educators in a particuiar school or community may con-

clude that high school students are best educated by exposure

to and struggle with the most controversial and emotionally-

charged topics of the day. In another community or school with

a different educational philosophy, educators may make an

equally informed and reasonable educational judgment that

pursuit of a particular subject matter is likely to provoke

emotions and reactions that would, by distracting student

attention, undermine the learning environment and the

educational purposes of the institution. Such a judgment could,

for example, be based on predictions of post-activity period

student interactions and their lingering effects during the day,

such as quarrels about eternal damnation between students who

do and do not attend a religious activity. Alternatively, such a

judgment could be based upon evaluation of the likely

19

emotional states of some students during the minutes and hours

following their attendance at an ideological or contentious

political activity.

Normal first amendment standards are... in-

appropriate because the proper functioning of the school is

not, except at its gross extremes, an objectively ascertai-

nable phenomenon. The judiciary cannot know the extent

to which any kind of distraction during the course of the

day interferes with learning. A court can observe that

fistfights did not break out and that no one complained

about being prevented from doing his work. But the court

cannot begin to know even the amount of distraction that

actually occurred, either in the students’ minds or beyond

their awareness. In the street corner context, the court can

say that distraction does not matter and can measure the

functioning of the institution by whether people can use the

streets. The lack of knowledge about what really enables

people to learn and about the complex interrelationships of

the variables involved prevent courts from judging that no

interference has taken place in the school.

Diamond, supra, 59 Tex. L. Rev. at 497-98.

Such pedagogical considerations are not unknown to this

Court’s jurisprudence. In Waugh v. Board of Trustees, 237 U.S.

589 (1915), this Court sustained against constitutional chal-

lenge a State’s decision to forbid students at its public univer-

sities to be members of private fraternities, stating that the

decision

may have been induced by the opinion that membership in

the prohibited societies divided the attention of the stu-

dents, and distracted froni that singleness of purpose which

the state desired to exist in its public educational in-

stitutions.

Id. at 597. Years later, a lower federal court upheld a rule

forbidding sch activities by high school students, again on the

basis of legitimate educational judgments regarding “divided

... attention” and student “distract[ions].” Hughes v. Caddo

Parish School Board, 57 F. Supp. 508, 512-13 (W.D. La.

20

1944). This Court summarily affirmed. 323 U.S. 685 (1945).

More recently, the Sixth Circuit invoked the same sorts of

educational considerations in upholding against constitutional

challenge a rule forbidding high school students from wearing

buttons and similar items which would identify them “as

supporters of a cause or bearing messages unrelated to their

education.” Guzick v. Drebus, 431 F.2d 594, 596 (6th Cir.

1970), cert. denied, 401 U.S. 948 (1971).1°

10 With little alteration, the trial court findings quoted by Sixth

Circuit in support of that conclusion could be equally applicable to a

school’s decision to exclude a given category of student activities from

an activity period:

“The rule was created in response to a problem which Shaw

has had over a period of many years. At the time high school

fraternities were in vogue, the various fraternities at Shaw were a

divisive and disruptive influence on the school. They carved out

portions of the school cafeteria in which only members of a

particular fraternity were permitted to sii. The fraternities were

competitive and engaged in activities which disrupted the

educational process at Shaw. There were fights between mem-

bers of the individual fraternities and often strong feelings

between the members.

“The same problem was encountered with the informal

clubs, which replaced high school fraternities and sororities. The

problem again exists as a result of the racial mixture at Shaw.

Buttons, pins, and other emblems have been used as identifying

‘badges.’ They have portrayed and defined the divisions among

students in the school. They have fostered an undesirable form

of competition, division and dislike. The presence of these

emblems, badges and buttons are taken to represent, define and

depict the actual division of the students in various groups.

“The buttons also encourage division among the students,

for they portray and identify the wearer as a member of a

particular group or the advocate of a particular cause.. This sets

the wearer apart from other students wearing different buttons or

without buttons. It magnifies the differences between students,

encourages emphasis on these differences, and tends to polarize

the students into separate, distinct, and unfriendly groups. In

(footnote continued on following page)

21

It may be conceded for present purposes that this authority

to exclude controversial and emotion-provoking student activi-

ties for pedagogical reasons is constrained by a first amendment

prohibition against viewpoint discrimination, or possibly even

open to judicial scrutiny of claims of official hostility to

particular ideas such as divided the Court in Pico v. Board of

Education, 457 U.S. 853.'' The essential point is that in the

absence of illicit motives, the first amendment leaves local

Officials to make these judgments in ambiguous educational

circumstances, especially given the “tremendous empirical

uncertainty over what constitutes the best, or even adequate,

(footnote continued from previous page)

addition, there have been instances in which students have

attempted to force other students to wear a particular manner of

dress or to wear their particular insignia or expressive button.

For these reasons Shaw High officials have enforced the anti-

button rule and have prohibited the wearing of such indicia.”

431 F.2d at 596.

'' However, Perry Education Ass’n, 460 U.S. at 52 n.12, suggests

that in the absence of such problems, school officials need not prove

actual or past disruption of the educational process to justify a

categorical exclusion of certain activities on that ground — a reason-

able educational judgment is sufficient. True, Tinker v. Des Moines

Independent Community School District, 393 U.S. 503 (1969), in-

validated a ban on student armbands symbolizing opposition to the

Vietnam War where it was contended that the resulting student

controversy would be disruptive of the educational process. The case

is distinguishable, however, as presenting a rather blatant instance of

viewpoint discrimination:

[S]chool authorities did not purport to prohibit the wearing of all

symbols of political or controversial significance. The record

shows that students in some of the schools wore buttons relating

to national political campaigns, and some even wore the Iron

Cross, traditionally a symbol of Nazism. The order prohibiting

the wearing of armbands did not extend to these. Instead, a

particular symbol — black armbands worn to exhibit opposition

to this Nation’s involvement in Vietnam — was singled out for

prohibition.

393 U.S. at 510-11.

22

learning environment.” Diamond, supra, 59 Tex. L. Rev. at 486

n.51 and authorities cited. In this respect as well, however, the

needs of public education cannot be accommodated within the

Court of Appeals’ expansive “public forum” doctrine.

D. Widmar v. Vincent Does Not Assist Resolution Of

The Public Forum Issue In The Context Of A High

School’s Student Activity Period.

Whatever the relevance of Widmar v. Vincent, 454 U.S.

263 (1981), to the Establishment Clause issue presented here,

that case does not materially aid resolution of the predicate

“public forum” question. In Widmar, the Court repeatedly

stated that the university facilities there had been made “gener-

ally available” for student activities and were a “generally open

forum,” 454 U.S. at 264, 267, 268, 269, 274, 277, and no one

disputed that a public forum had in fact been created. Rather,

only religious speech had been singled out and denied access,

and the only question was whether the Establishment Clause

provided a constitutionally sufficient justification for the dis-

crimination.

It should be apparent for all of the foregoing reasons that

Widmar is thus unhelpful in addressing the “public forum”

question in this case. Perry Education Ass’n establishes that the

government’s permitting only selective access will not create a

public forum, and further that if rights of any sort are conferred

by reason of the selective access, they would benefit only

activities or groups “of similar character.” 460 U.S. at 48.

Widmar does not even address the range and degree of student

access to facilities required to create a public forum in the

university context. It therefore sheds no light whatever on the

circumstances required to reach the constitutional conclusion

that a high school’s student activity period constitutes a “public

forum.” Nor does it provide any support for the Court of

Appeals’ “directly related to a particular curricular offering”

criterion.

ee ee ee

23

Il. Given The Intervening Enactment Of The Equal Access

Act And Its “Noncurriculum Related” Standard, This

Court Should Not Follow The Court Of Appeals’ Specula-

tions On “Curriculum-Relatedness” In This Case Which

Is Not Properly Framed For Resolution Of That Issue.

After announcing its “curriculum-related” standard for

determining whether a high school student activity period is a

public forum, the Court of Appeals proclaimed that Key Club,

among others, “has little direct relevance to normal course

offerings.” 741 F.2d at 549 n.18. So far as appears in the

court’s opinion, however, this conclusion was not based upon

evidence in the record as to the particular school’s curriculum or

the activities of the particular Key Club. The court also

speculated that the activities under consideration could “be said

. . . [to] enhance the curricular goals of the school” (as by

“promoting civic awareness” in the case of Key Club), but then

found that this “same extended chain of reasoning” could be

used to justify most any activity as curriculum-related and

would not distinguish religious activity from any other. Jd.

As shown above, this “curriculum-related” criterion is not

the standard compelled by the first amendment for deciding

whether officials at a public high school have created a public

forum. Whether Key Club or any other activity is “curriculum-

related” is thus not a matter essential to the resolution of this

case. However, a similarly-phrased standard is now part of the

Equal Access Act, which is not involved here. Under the Act, a

public secondary school is deemed to have a “limited open

forum” (and thus may not discriminate “on the basis of the

religious, political, philosophical, or other content of speech”) if

it allows “noncurriculum related student groups to meet on

school premises during noninstructional time.” 20 U.S.C.

§ 4071(a)-(b); see n. 8, supra.

Although the issue will doubtless become the subject of

future litigation, the legislative history of the Act indicates that

local school authorities have considerably more discretion in

24

making this “noncurriculum related” determination than is

indicated by the Court of Appeals’ constitutional speculation

and its “extended chain of reasoning” remarks in this case. See,

e.g., 130 Cong. Rec. S. 8342 (daily ed. June 27, 1984)

(colloquy between Senators Hatfield and Gorton); 130 Cong.

Rec. H. 7732 (daily ed. July 25, 1984) (remarks of Repre-

sentative Goodling). Under this broader view of their dis-

cretion to decide, within reasonable limits, which student

activities are and are not “noncurriculum related,” particular

school authorities have deemed Key Club to be “curriculum

related” under the Act. Such determinations will necessarily be

made on a case-by-case basis and in view of local circumstances

such as the relationship between Key Club’s general objectives

and a civics course, or the specific club’s activities and a course

in leadership training.

These issues are not before the Court in this case. These

amici simply request that the Court’s opinion in this case not

prejudice the consideration and resolution of these issues under

the Act by local officials in a myriad of fact situations around

the country. Such prejudice would doubtless result were this

Court needlessly to repeat the Court of Appeals abstract

reasoning regarding “curriculum-related[ ness]” in general and

Key Club in particular. This case does not involve the Equal

Access Act, a school official’s deliberate exercise of discretion

under a “curriculum-related” standard, or even, apparently, an

evidentiary record framed in light of such a standard. Never-

theless, a broad pronouncement by the Court in this case on the

subject of “curriculum relatedness” would erroneously domi-

nate future school officials’ decisions as well as potential lower

court litigation under the Act.'2

12Cf. Schauer, “Private” Speech and the “Private” Forum:

Givhan v. Western Line School District, 1979 Sup. Ct. Rev. 217, 217:

No amount of academic prattle about holdings, dicta, and ratio

decidendi can dispel the fact that, in courts other than the

Supreme Court, the law is what the Supreme Court says by its

words as much as it is what the Court holds by its decisions.

25

CONCLUSION

Kiwanis International and Key Club International, as

amici curiae, respectfully submit that in the event this Court

finds it necessary to decide the free speech issue, the Court

should hold, contrary to the Court of Appeal’s opinion, that no

public forum and therefore first amendment free speech right of

access is shown by the facts surrounding the student activity

period in this case. In no event should this Court affirm the

Court of Appeal’s generic “curriculum-related” standard for

determining whether a high school’s student activity period

constitues a “public forum” under the first amendment. Final-

ly, these amici respectfully request that given the enactment of

the Equal Access Act, this Court not repeat the Court of

Appeal’s speculations on that legal standard in general or as

applied to Key Club in particular.

Respectfully submitted,

STANLEY C. FICKLE

Counsel of Record

of

BARNES & THORNBURG

1313 Merchants Bank Building

11 South Meridian Street

Indianapolis, Indiana 46204

Telephone: (317) 638-1313

Attorney for Kiwanis

International and Key Club

International as Amici

Curiae