Amicus Curiae Brief — Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens

Supreme Court, U.S.

nh \ FILED

F. SPANIOL, JR

No. 88-1597

In The }

Supreme Court of the United States

October Term, 1988

a.

THE BOARD OF EDUCATION OF THE WESTSIDE

COMMUNITY SCHOOLS, et al.,

Petitioners,

BRIDGET MERGENS, et al.,

Respondents.

>

On Writ Of Certiorari To The United States Court

Of Appeals For The Eighth Circuit

+

BRIEF AMICUS CURIAE OF CHRISTIAN

ADVOCATES SERVING EVANGELISM

IN SUPPORT OF RESPONDENTS

co

WENDELL R. Birp*

Davip J. Myers

Law Orrices or WENDELL R. Birp

1150 Monarch Plaza

3414 Peachtree Road, N.E.

Atlanta, Georgia 30326

(404) 264-9400

*Counsel of Record

Attorneys for Amicus Curiae

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

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

coca vacccneccesevceeneses i

Ss nnccdccccctesesccvessss iv

INTEREST OF AMICUS CURIAE .................. 1

GE bobs ndwhedheccdesicicivecccoweccecsss 3

I.

THE EQUAL ACCESS ACT AND THE FIRST

AMENDMENT REQUIRE THAT CURRICULUM

RELATEDNESS BE DETERMINED BY AN OBJEC-

TIVE TEST RATHER THAN BY AN IMPOSSIBLE-

TO-MEET AND ARBITRARY SUBJECTIVE TEST

OF SCHOOL OFFICIAL INTENT................

A. Regardless of School Officials’ Subjective

Intent, Groups that Are Not Directly Related

to the School Curriculum and that Are Not

Truly Sponsored by the School Are Noncur-

riculum Related Groups under the Act ....

1. The Act by Its Terms Establishes an

Objective Definition of “Noncurriculum

Related Student Groups.”..............

2. The vo History of the Act Con-

firms the Objective Definition of “Non-

curriculum Related Student Groups.” ..

a. The Senate Debates................

De Ne BE IED ccccccccccccenes

3. School Officials May Not Circumvent the

Act Simply by Declaring that All Non-

religious Student Groups Are Curricu-

PS Cc scccvesveeechcoseoecesss

B. This Court Uses an Objective Standard in

Evaluating State Action Burdening First

SE HIE a cove opccnscvnves stcess

II.

ii

TABLE OF CONTENTS - Continued

Page

1. This Court Condemns Arbitrary, Discre-

tionary, or Subjective Standards for Offi-

cial Action Affecting Religious and Other

Expression as a Prior Restraint.........

2. This Court Also Measures Curriculum

Relatedness by an Objective Standard

Rather than by Subjective Intent .......

C. The Court of Appeals Correctly Held that

the Forum at Westside High School Was Not

Limited to Curriculum Related Groups

(Properly Defined). .......00sccccesestiyese:

THE EQUAL ACCESS ACT AND THE FIRST

AMENDMENT REQUIRE THAT WHETHER A

FORUM HAS BEEN OPENED BE DETERMINED

BY THE SCHOOL’S POLICY AND PRACTICE

RATHER THAN BY THE SUBJECTIVE INTENT

OF SCHOOL OFFICIALS ......cccsccccccssces:

A. The Hazelwood Decision and Other

Decisions, and the First Amendment, Do

Not Allow a School District To Exclude

Expression Based on a Subjective Intent

To Avoid a Limited Forum While Hav-

ing a Policy or Practice that Opens a

Linaited Peses. ..occcevecssssaeeeeee

1. Hazelwood Employed an Objective

Standard for School Forums .......

2. Widmar and Perry Employed an

Objective Standard for Limited

Open Forums ......cscovssevessees

11

14

15

16

17

17

CONCLUSION

iii

TABLE OF CONTENTS - Continued

Page

B. The Act Is Intended To Be Consistent

with the First Amendment Standard for

Determining that a Forum Is Opened...

The Court of Appeals Correctly Held

that Westside High School Has Opened

a Forum and that the Forum Must Be

Open to the Bible Club................

oeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeese

19

iv

TABLE OF AUTHORITIES

Page

Cases:

Board of Airport Commissioners v. Jews for Jesus, Inc.,

482 US. __, 9% L. Ed. 24 SOD (1967) ............. 13

Cantwell v. Connecticut, 310 U.S. 296 (1940).......... 11

City of Lakewood v. Plain Dealer Publishing Co., 486

SP og CE Ms EE MP ED os dee sccccccness 12

Cornelius v. NAACP Legal Defense & Education

Fund, Inc., 473 U.S. 788 (1985) .......... 60. e ee eee 18

Fowler v. Rhode Island, 245 U.S. 67 (1953)............ 10

Hague v. C.1.O., S57 US. G6 (IGS9) ... 0. nec ccccccees 11

Hazelwood School District v. Kuhlmeier, 484 U.S. __,

ee eee 6, 14, 15, 17

Healy v. James, 408 U.S. 169 (1972) .......... 0. e eee. 8

Heffron v. International Society for Krishna Con-

sciousness, 452 U.S. 640 (1981).............2-.0 00s 13

Kunz v. New York, 340 U.S. 290 (1951)............ 11, 12

Largent v. Texas, 318 U.S. 418 (1943)...............-. 11

Lewis v. City of New Orleans, 415 U.S. 130 (1974) .... 13

Lovell v. Griffin, 303 U.S. 444 (1938) ..............45. 11

Madison School District v. Wisconsin Employment

Relations Comm’‘n, 429 U.S. 167 (1976)............. 17

Mergens v. Board of Education, No. CV 85-0-426 (D.

SS tay MNS iv ones de eevewnts bene di 14, 16, 20

Mergens v. Board of Education, 867 F.2d 1076 (8th

PN EE hwhochihes ans cded ein eaeaeknihent ake 11, 19

Niemotko v. Maryland, 340 U.S. 268 (1951) ....11, 12, 14

TABLE OF AUTHORITIES - Continued

Page

Perry Education Association v. Perry Local Educators’

Association, 460 U.S. 37 (1983).............. 15, 17, 18

Saia v. New York, 334 U.S. 558 (1948)................ 11

Schneider v. New Jersey, 308 U.S. 147 (1939).......... 11

Widmar v. Vincent, 454 U.S. 263 (1981).... 18, 19, 20, 22

STATUTES AND LEGISLATIVE History:

oS ee 3

ee a ed 8

130 Cong. Rec. H12270 (daily ed. October 11,

1984) (statement of Rep. Bonker)................. 4,9

130 Cong. Rec. H12271 (daily ed. October 11,

1984) (statement of Rep. Bonker)................... 9

130 Cong. Rec. H12273 (daily ed. October 11,

1984) (statement of Rep. Goodling) ................ 9

130 Cong. Rec. H7732 (daily ed. July 25, 1984)

(statement of Rep. Goodling) ................... 6, 15

130 Cong. Rec. H7667 (daily ed. July 25, 1984)

CURRROIIIINER. GE TRU. PINNED 6 oss ccc cece ceccnccnces 19

130 Cong. Rec. S8358 (daily ed. June 27, 1984)

(statement of Sen. Biden)......................0.- 19

130 Cong. Rec. $8338 (daily ed. June 27, 1984)

ee 19

130 Cong. Rec. $8362 (daily ed. June 27, 1984)

errr rere 3, 21

vi

TABLE OF AUTHORITIES - Continued

Page

STATUTES AND LEGISLATIVE HiIsTOoRY:

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

(statement of Sen. Gorton)..................05- 16, 20

130 Cong. Rec. $8332 (daily ed. June 27, 1984)

SORE Hie TS IIs og vc ccc ccccceccccccccecs 19

130 Cong. Rec. $8338 (daily ed. June 27, 1984)

ee nk occ cenctneeccaene 4

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

i ee cc wicsceesvtcseee 19

130 Cong. Rec. $8341 (daily ed. June 27, 1984)

PPTL ETTIT TT EET Tee 21

130 Cong. Rec. $8355 (daily ed. June 27, 1984)

EE ee 20

130 Cong. Rec. $8364 (daily ed. June 27, 1984)

(statement of Sen. Thurmond) .................... 19

H. Rep. No. 710, 98th Cong., 2d Sess. (1984),

reprinted in 1984 U.S. Code Cong. & Admin.

ad Se Tid bck ea bidehacdhnedhadUie hoes ve 19

S. Rep. No. 357, 98th Cong., 2d Sess. (1984),

reprinted in 1984 U.S. Code Cong. & Admin.

ET Sioa is Ace Warde rns ede nce sdercccaassceens 19

S. 1059, 98th Cong., Ist Sess. (1983).............44. 4,5

U.S. CONSTITUTION:

ee ceasseewenn 2, passim

OtTHER AUTHORITIES:

Note, Religious Expression in the Public School

Forum: The High School Student’s Right to Free

Speech, 72 Geo. L.J. 135 (1983) ............ 0... ee. 8

Be CHIE COUP cca cen ciscccccnccccenecsecess 16, 22

No. 88-1597

>

In The

Supreme Court of the United States

October Term, 1988

+

THE BOARD OF EDUCATION OF THE WESTSIDE

COMMUNITY SCHOOLS, et al.,

Petitioners,

BRIDGET MERGENS, et al.,

Respondents.

+

On Writ Of Certiorari To The United States Court

Of Appeals For The Eighth Circuit

2

BRIEF AMICUS CURIAE OF CHRISTIAN

ADVOCATES SERVING EVANGELISM

IN SUPPORT OF RESPONDENTS

5 ae

INTEREST OF AMICUS IN THIS CASE*

This case presents important issues concerning the

freedom of speech for all Americans. The American tradi-

tion of free and open discourse in public places has

*Counsel of Record to the parties in this case have con-

sented to the filing of this brief. Their letters of consent have

been filed with the Clerk of the Court pursuant to Rule 36.

contributed greatly to the success of our democracy.

Christian Advocates Serving Evangelism (CASE) is

opposed to Petitioners’ attempt to restrict religious

speech in a public high school’s limited open forum that

is generally accessible to nonreligious student groups.

CASE believes that the decision of the United States

Court of Appeals for the Eighth Circuit should be

affirmed and that this Court should issue its opinion in

favor of Respondents’ First Amendment rights.

CASE is a Christian ministry dedicated to protecting,

preserving, and defending First Amendment rights to

proclaim the Gospel of Jesus Christ in public places. As

one of its tenets, CASE seeks to strengthen the individual

citizen’s respect for, and allegiance to, our constitutional

form of government. CASE undertakes to assist litigants

throughout the United States in significant cases relating

to First Amendment freedoms, and CASE lawyers have

specialized in litigation in both state and federal courts

with regard to various First Amendment issues. CASE

believes the experience of its counsel will be of assistance

to the Court in this case.

ARGUMENT

I. THE EQUAL ACCESS ACT AND THE FIRST

AMENDMENT REQUIRE THAT CURRICULUM

RELATEDNESS BE DETERMINED BY AN OBJEC-

TIVE TEST RATHER THAN BY AN IMPOSSIBLE-

TO-MEET AND ARBITRARY SUBJECTIVE TEST

OF SCHOOL OFFICIAL INTENT.

A. Regardless of School Officials’ Subjective

Intent, Groups that are Not Directly Related to

the School Curriculum and that Are Not Truly

Sponsored by the School Are Noncurriculum

Related Groups under the Act.

1. The Act by Its Terms Establishes an Objec-

tive Definition of “Noncurriculum Related

Student Groups.”

A school estavlishes a limited open forum, and

thereby brings itself within the coverage of the Equal

Access Act, when it “grants an offering to or opportunity

for one or more noncurriculum related student groups to

meet on school premises during noninstructional time.”

20 U.S.C. § 4071(b). The Act defines “meeting” to include

student activities “not directly related to the school curricu-

lum.” Id. § 4072(3). See also 130 Cong. Rec. $8362 (daily ed.

June.27, 1984) (statement of Sen. Dole) (“the bill’s defini-

tion of ‘limited open forum’ . . . encompass|es] only those

student group meetings that are not directly related to the

school’s curriculum”). Thus, the Act defines “noncur-

riculum related student groups” not according to the

subjective intent of school officials but according to the

directness of the relationship between the groups’ activ-

ities and the school’s academic or instructional

curriculum.

Further clarification of the meaning of “noncur-

riculum related” and “not directly related to the school

curriculum” may be found in the legislative history of the

Act.!

2. The Legislative History of the Act Confirms the

Objective Definition of “Noncurriculum

Related Student Groups.”

Throughout the floor debates on the Act in both

houses of Congress, “noncurriculum related student

groups” were identified by their lack of direct relation-

ship to the school’s instructional curriculum and by their

lack of school sponsorship. They were not identified

according to the subjective opinion of school officials.

a. The Senate Debates

On the Senate floor, Senator Hatfield, a principal

sponsor of the Act, was asked to clarify the meaning of

' The direct legislative history of the “noncurriculum

related” language is confined to the floor debates in the Senate

and House of Representatives. No committee reported on the

final version of the bill containing the “noncurriculum related”

language because the final version was introduced on the

Senate floor as a perfecting amendment to a previous version

of the Act, S. 1059, and on the House floor as an amendment to

the Emergency Math/Science Education Act. 130 Cong. Rec.

$8338 (daily ed. June 27, 1984) (statement of Sen. Hatfield); id.

H12270 (daily ed. Oct. 11, 1984) (statement of Rep. Bonker).

“limited open forum” and “noncurriculum related.” 130

Cong. Rec. at $8342 (daily ed. June 27, 1984) (statement of

Sen. Gorton). Sen. Hatfield stated that a limited open

forum is created when “the school permits legitimate

activities outside of the instructional activities of the school,”

and that an activity is “noncurriculum related” when it is

not “a kind of extension of the classroom.” Id. (emphasis

added). Foreign language clubs, for example, are exten-

sions of existing foreign language classes, and are there-

fore not noncurriculum related. Id. However, “the chess

club, the Young Democrats, the Young Republicans, and

various and sundry other such clubs would certainly not

be in the curriculum-related category.” Id. Interscholastic

athletic programs such as high school football teams are

curriculum related because they grow out of the physical

education curriculum, are supported directly by tax dol-

lars, and are led by faculty members hired specifically for

that purpose. Id.2 The same is true of cheerleading

squads, some drama clubs, and school bands. Id.

In short, “one of the keys to the noncurriculum-

related student organization is that it is not sponsored by

the school.” Id. (statement of Sen. Gorton) (emphasis

added). “Sponsorship” in this context “has to do with

official participation, ... the directing of that activity, and

the leading of that activity, and the orchestrating of that

activity.” Id. (statement of Sen. Hatfield) (emphasis

added). As the Act itself provides, “ ‘sponsorship’

2 A previous version of the Act specifically excluded “any

officially sponsored school athletic team that participates in

interscholastic competition” from its definition of “voluntary

extracurricular activities. S. 1059, 98th Cong., Ist Sess. (1983).

includes the act of promoting, leading, or participating in

a meeting.” 20 U.S.C. § 4072(3). See also Hazelwood School

District v. Kuhlmeier, 484 U.S. __, 98 L. Ed. 2d 592, 605

(1988) (defining school sponsorship).

Thus, the Equal Access Act is triggered by the exist-

ence of student organizations on campus that are not

sponsored by the school, as the term sponsorship is objec-

tivelv defined under the Act (i.e., funded, participated in,

led, directed, or orchestrated by the school). School offi-

cials may not circumvent the Act by claiming to sponsor

student g-oups or by re-defining sponsorship more

broadly than does the Act, as the school officials have

attempted to do in this case. See Section I.C. infra.

b. The House Debates

The legislative history in the House of Representa-

tives parallels that in the Senate. On the House floor,

Representative Goodling (R.-Pennsylvania), also empha-

sized the objective sponsorship element in defining “non-

curriculum related student groups.” Rep. Goodling

focused on whether public schools “usually ... sponsor”

the activity in question. 130 Cong. Rec. H7732 (daily ed.

July 25, 1984) (emphasis added). Thus, “academic, athlet-

ic, or musical”*activities such as “[a] Latin club, a soccer

team, and a school band” all are clearly curriculum

related under the Act. Id. However, echoing the distinc-

tions drawn in the Senate, “[a] young Democrat or

Republican club, private social organizations, or religious

groups” are noncurriculum related under the Act. /d. If it

is unclear whether the activity is one that public schools

usually sponsor, the question becomes whether “the school

\

or a schoolteacher require[s] or directly encourage[s] student

participation in such group in connection with curriculum

course work.” Id. If so, the meeting would be considered

curriculum related and the equal access policy would not

be triggered. Id.

Thus, Congress broadly defined noncurriculum

related student groups by narrowly defining curriculum-

related activities. To summarize the provisions of the Act

and its legislative history, the following are characteris-

tics of curriculum-related activities which do not trigger

the equal access concept:

(1) Most importantly, the activity is directly

related to specific courses in the school, as

language clubs are to language classes, sci-

ence and mathematics clubs are to those

classes, and a drama club is to a drama

class.

(2) The activity is funded entirely or substan-

tially by the school, including provision of

a specially paid faculty sponsor, rather than

the school simply providing a meeting

room and necessary “overhead” expenses

such as heat and light.

(3) The activity is organized by the school

independent of student initiation.

(4) The activity officially represents the school

to the community (e.g., interscholastic ath-

letic teams, cheerleading squads, or some

musical groups).

(5) Participation in the activity is “required or

directly encouraged” in connection with

curricular course work (e.g., foreign lan-

guage clubs; speech and drama clubs in

schools with forensics and drama classes).*

Because many of the student groups meeting at Westside

High School do not satisfy any of the above criteria, they

are noncurriculum related groups under the Act and the

school has created a forum by allowing them to meet. See

Section I.C. infra.

3. School Officials May Not Circumvent the Act

Simply by Declaring that All Nonreligious Stu-

dent Groups Are Curriculum Related.

The objective definition of noncurriculum related

groups in the text of the Act, § 4072(3), and the elabora-

tion upon that objective definition in the legislative his-

tory demonstrate that local school officials are not free to

circumvent the Act simply by deeming all groups to be

curriculum related or school-sponsored, heedless of those

activities’ actual relationship to the school’s curricular

course work. Congress clearly contemplated that the dis-

tinction between curriculum related and noncurriculum

3 A student group that objectively is noncurriculum-

related cannot, in an attempt to evade the Equal Access Act, be

transmogrified into a curriculum-related group by being re-

designed to meet the second through fifth factors. Such “a

subterfuge for content based discrimination against a student-

initiated religious club” would be contrary to this Court’s

decision in Healy v. James, 408 U.S. 169, 181-83 (1972), prohibit-

ing a university from refusing a campus organization official

recognition when such refusal would severely hamper the

ability of students to meet. Note, Religious Expression in the

Public School Forum: The High School Student's Right to Free

Speech, 72 Geo. L.J. 135, 144-45 (1983).

related activities was an objective distinction, to be made

on the basis of the factors outlined above, and not on the

basis of local officials’ private, variable, and potentially

overbroad conceptions of curriculum relatedness.‘ This is

precisely the position stated in “The Equal Access Act

Guidelines”:

[A] local school cannot defeat the intent of The

Equal Access Act by some all encompassing def-

inition that arbitrarily results in all but one or a

few student clubs being defined as curriculum

related.

130 Cong. Rec. H12271 (daily ed. October 11; 1984) (state-

ment of Rep. Bonker).5

4 Senator Hatfield at one point in the floor debate dis-

claimed any intention to limit the discretion of school districts

“to determine where the line is to be drawn between curricu-

lum-related activities and noncurriculum-related.” 130 Cong.

Rec. $8342 (daily ed. June 27, 1984) (statements of Sen. Gorton

and Sen. Hatfield). He made it clear, however, that school

districts could engage in such line drawing by their actions

and not merely by playing word games. Thus, the school

district could determine that a cheerleading squad should be

curriculum related by assigning a teacher to lead the squad. Id.

(statement of Sen. Hatfield).

5 “The Equal Access Act Guidelines” were drafted jointly

by numerous private groups that had participated, on both

sides of the issue, in drafting and debating the Act. 130 Cong.

Rec. H12270 (daily ed. October 11, 1984) (statement of Rep.

Bonker). The Guidelines “are intended as an explanation and

do not reflect the official position of the Congress or the U.S.

Government.” Id. at H12273 (statement of Rep. Goodling).

10

The semantic gymnastics adopted by the school offi-

cials in this case should be rejected, just as similar defini-

tional gamesmanship was rejected in Fowler v. Rhode

Island, 345 U.S. 67, 70 (1953). In Fowler, a city ordinance

prohibited persons from addressing religious meetings in

public parks. The city applied the ordinance against a

Jehovah’s Witness speaker who addressed a religious

meeting in a public park, but conceded that it would not

have applied the ordinance against a speaker at a Protes-

tant church service in the same park. /d. at 69. This Court

pointedly dismissed the city’s argument that the

Jehovah’s Witness speaker’s expression differed from that

of a Protestant minister:

To call the words which one minister speaks to

his congregation a sermon, immune from regu-

lation, and the words of another minister an

address, subject to regulation, is merely an indi-

rect way of preferring one religion over another.

Id. at 70. Here, the school officials’ description of the

words one student group speaks as “curriculum related”

and the words of another student group as “noncur-

riculum related” - without any objective distinction

between the student groups in terms of school sponsor-

ship or relation to the instructional curriculum — is an

indirect way of excluding religious speech entirely.

A subjective, school-by-school interpretation of cur-

riculum-relatedness would render the Act ineffectual, as

the Court of Appeals held:

Allowing such a -broad interpretation of

“curriculum-related” [as that advanced by the

school officials] would make the EAA meaning-

less. A school’s administration could simply

declare that it maintains a closed forum and

11

choose which student clubs it wanted to allow

by tying the purposes of those student clubs to

some broadly defined educational goal. At the

-same time the administration could arbitrarily

deny access to school facilities to any unfavored

student club on the basis of its speech content.

This is exactly the result that Congress sought to

prohibit by enacting the EAA. A public secondary

school cannot simply declare that it maintains a

closed forum and then discriminate against a partic-

ular student group on the basis of the content of the

speech of that group.

Mergens v. Board of Education, 867 F.2d 1076, 1078 (8th Cir.

1989) (emphasis added).

B. This Court Uses an Objective Standard in Eval-

uating State Action Burdening First Amend-

ment Rights.

1. This Court Condemns Arbitrary, Discretion-

ary, or Subjective Standards for Official

Action Affecting Religious and Other

Expression as a Prior Restraint.

It is well established that statutes and ordinances

requiring that permits be obtained from local officials as a

prerequisite to the use of public places “constitute[] a

prior restraint on freedom of speech, press and religion,

and, in the absence of narrowly drawn, reasonable and defi-

nite standards for the officials to follow, must be invalid.”

Niemotko v. Maryland, 340 U.S. 268, 271 (1951) (emphasis

added), citing Kunz v. New York, 340 U.S. 290 (1951); Saia

v. New York, 334 U.S. 558 (1948); Hague v. €.1.0., 307 U.S.

496 (1939); Lovell v. Griffin, 303 U.S. 444 (1938). See also

Largent v. Texas, 318 U.S. 418 (1943); Cantwell v. Connecti-

cut, 310 U.S. 296 (1940); Schneider v. New Jersey, 308 U.S.

12

147 (1939). If the license-issuing practice lacks clear stan-

dards or allows arbitrary refusal to grant a license, it

impermissibly gives “an administrative official discre-

tionary power to control in advance the right of citizens

to speak on religious matters.” Kunz, 340 U.S. at 293. See

also Niemotko, 340 U.S. at 273. Standard-less discretion

also unconstitutionally hinders judicial review of govern-

mental officials’ decisions, as this Court recently stated in

City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. __,

100 L. Ed. 2d 771 (1988):

[T]he absence of express standards makes it dif-

ficult to distinguish, “as applied,” between a

licensor’s legitimate denial of a permit and its

illegitimate abuse of censorial power. Standards

provide the guideposts that check the licensor

and allow courts quickly and easily to deter-

mine whether the licensor is discriminating

against disfavored speech. Without these guide-

posts, post hoc rationalizations by the licensing

official and the use of shifting or illegitimate

criteria are far too easy, making it difficult for

courts to determine in any particular case

whether the licensor is permitting favorable,

and suppressing unfavorable, expression.

Id. at 783. See also id. at 792 (“Such a minimal requirement

cannot provide the standards necessary to ensure consti-

tutional decision-making, nor will it, of necessity, provide

a solid foundation for eventual judicial review.”)

Such arbitrary and standard-less powers cannot be

justified as time, place, or manner restrictions. In the

licensing situation, the “covert forms of discrimination

that may result when arbitrary discretion is vested in

some governmental authority . . . [are] inherently incon-

sistent with a valid time, place, and manner regulation

13

because such discretion has the potential for becoming a

means of suppressing a particular point of view.” Heffron

v. International Society for Krishna Consciousness, 452 U.S.

640, 649 (1981).

The same is true when deciding whether a forum has

been opened. School officials may not be permitted unfet-

tered discretion to define at their arbitrary and subjective

whim which forums are open or closed, or which student

groups are or are not curriculum related. Otherwise,

school officials would be free to engage in the covert

forms of discrimination and suppression against which

the First Amendment is meant to protect.

This Court has previously rejected a subjective

forum-relatedness standard. In Board of Airport Commis-

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

508 (1987), airport officials sought to enforce a ban on

“expressive activity unrelated to airport-related pur-

poses.” This Court rejected the proposed subjective

limitation:

[T]he result of this vague limiting construction

___ would be to give LAX officials alone the power

to decide in the first instance whether a given

activity is airport related. Such a law that “con-

fers on police a virtually unrestrained power to

arrest and charge persons with a violation” of

the resolution is unconstitutional because “(t]he

opportunity for abuse, especially where a stat-

ute has received a virtually open-ended inter-

pretation, is self-evident.”

¢ Id. at 509, quoting Lewis v. City of New Orleans, 415 U.S.

130, 135-36 (1974) (Powell, J., concurring).

14

In this case, the school district argues that no forum

had been opened because a school official “testified that,

in his opinion, all clubs and activities at WHS are curricu-

lum related.” Mergens v. Board of Education, No. CV

85-0-426, slip op. at 12 (D. Neb. Feb. 2, 1988) (emphasis

added). However, “the exercise of [the] freedoms of

speech and religion protected by the First and Fourteenth

Amendments, [have] a firmer foundation than the whims

Or personal opinions of a local governing body.”

Niemotko, 340 U.S. at 272.

2. This Court Also Measures Curriculum Related-

ness by an Objective Standard Rather than by

Subjective Intent.

In Hazelwood School District v. Kuhlmeier, 484 U.S. __,

98 L. Ed. 2d 592 (1988), this Court distinguished curricu-

lum-related student speech from noncurriculum-related

student speech on the same basis as does the Equal

Access Act. The Court focused on whether the activity in

question was “school-sponsored” so that “students, par-

ents, and members of the public might reasonably per-

ceive [the activity] to bear the imprimatur of the school.”

484 U.S. at __, 98 L. Ed. 2d at 605 (emphasis added).

Activities that are school sponsored and bear the school’s

imprimatur “may fairly be 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 student participants and audi-

ences.” Id. Only when student activities are “part of the

school curriculum” by this definition have school officials

“ ‘reserve[d] the forum for its intended purpos[e]’ as a

15

supervised learning experience for . . . students” and not

created a limited open forum. /d., quoting Perry Education

Association v. Perry Local Educators’ Association, 460 U.S.

37, 46 (1983).

The record in this case demonstrates that many of the

student groups at Westside High School are noncur-

riculum related and not school-sponsored under this

Court’s definition of those terms in Hazelwood, as well

under Congress’ definition of those terms in the Equal

Access Act.

C. The Court of Appeals Correctly Held that the

Forum at Westside High School Was Not Lim-

ited to Curriculum Related Groups (Properly

Defined).

Several of the student groups actively meeting at

Westside High School clearly are “noncurriculum related

student groups” as that term is objectively defined by the

Equal Access Act: the groups are not objectively directly

related to specific curricular courses, the meetings are not

truly sponsored by the school, and participation in those

groups is not required or directly encouraged as part of

any curricular course work. In fact, several of the student

groups fall within categories that Congress specifically

intended to designate as noncurriculum related. Interact

and Zonta are service clubs affiliated with Rotary Interna-

tional and are therefore “private social organizations”

that are noncurriculum related under the Act. 130 Cong.

Rec. H7732 (daily ed. July 25, 1984) (statement of Rep.

Goodling). The Chess Club, which, contrary to the Dis-

trict Court’s finding, is not an extension of the high

school’s “logic class” because no such class exists (Tr.

16

265:5-7), “would certainly not be in the curriculum-

related category.” 130 Cong. Rec. $8342 (daily ed. June 27,

1984) (statement of Sen. Hatfield). For Interact, Zonta, the

Chess Club, the Ski Club, and the Subsurfers Club,

among others, (i) the clubs are initiated by students, not

by the school, (ii) attendance is completely voluntary, (iii)

none is offered as a prerequisite for class credit or gradu-

ation, and (iv) the school’s participation is limited to

providing teachers merely to fulfill the role of a monitor.

(Tr. 83:16-23; 140:20-141:1; 177:1-11; 176:12-19; 222:11-16;

269:21-23; 401:23-402:18). Neither the school officials’

mere “opinion [that] all clubs and activities at WHS are

curriculum related,” Mergens, No. CV 85-0-426, slip op. at

12, nor their arbitrary designation of the groups as

school-sponsored, in any way change the objective facts:

the clubs are not sponsored by the school and participa-

tion is not required or encouraged as part of any curricu-

lar course work.

Il. THE EQUAL ACCESS ACT AND THE FIRST

AMENDMENT REQUIRE THAT WHETHER A

FORUM HAS BEEN OPENED BE DETERMINED

BY THE SCHOOL’S POLICY AND PRACTICE

RATHER THAN BY THE SUBJECTIVE INTENT OF

SCHOOL OFFICIALS.

This Court has never allowed the existence of a tradi-

tional public forum to hinge on the subjective intent of

governmental officials about public use of streets and

parks. It has never allowed the creation of an open forum

to depend on the subjective and arbitrary decision of

governmental officials about a group’s requested access

to other public property. The same approach should be

17

taken to the definition and creation of limited open

forums in public schools. 2

A. The Hazelwood Decision and Other Decisions,

and the First Amendment, Do Not Allow a

School District To Exclude Expression Based on

a Subjective Intent To Avoid a Limited Forum

While Having a Policy or Practice that Opens a

Limited Forum.

In concluding that Westside High School is a closed

forum because of the school officials’ “opinion” that all

existing student groups were curriculum related, the Dis-

trict Court “ignore[d] the ancient wisdom that calling a

thing by a name does not make it so.” Madison School

District v. Wisconsin Employment Relations Comm'n, 429

U.S. 167, 174 (1976). This Court has never relied on gov-

ernment officials’ expression of their subjective intent in

determining whether a public forum has been created.

1. Hazelwood Employed an Objective Standard for

School Forums.

Instead, the Court in Hazelwood focused on the rele-

vant officials’ policy and practice:

Hence, school facilities may be deemed to be

public forums only if school authorities have

“by policy or by practice” opened those facilities

“for indisciiminate use by the general public,”

or by some segment of the public, such as stu-

dent organizations.

Hazelwood, 484 U.S.__, 98 L. Ed. 2d at 603, quoting Perry,

460 U.S. at 47. While “[t]he government does not create a

18

public forum by inaction or by permitting limited dis-

course, but only by intentionally opening a nontradi-

tional forum for public discourse,” “the Court has looked to

the policy and practice of the government to ascertain whether

it intended to designate a place not traditionally open to

assembly and debate as a public forum.” Cornelius v.

NAACP Legal Defense & Education Fund, Inc., 473 U.S. 788,

802 (1985), citing Perry, 460 U.S. at 46.°

2. Widmar and Perry Employed an Objective Stan-

dard for Limited Open Forums.

School officials “intentionally open[] a nontraditional

forum for public discourse” by students when they

knowingly create an opportunity for or permit the dis-

course that is sufficient to create the forum. There is no

requirement that the school officials specifically intend all

possible results of their actions permitting the existence

of the forum. For example, the school officials of the

University of Missouri at Kansas City specifically

intended not to permit religious student groups to meet

on its campus, Widmar v. Vincent, 454 U.S. 263, 265 & n. 3

(1981), but had nonetheless created a public forum, from

which religious student groups could not be excluded, by

encouraging or allowing other student groups to meet.

Similarly, the Court in Perry did not analyze evidence of

6 “The Court has also examined the nature of the property

and its compatibility with expressive activity to discern the

government’s intent,” Cornelius, 473 U.S. at 802, citing Widmar

v. Vincent, 454 U.S. 263 (1981). Here, as in Widmar, the property

in question is compatible with the proposed expressive

activity.

19

the school officials’ subjective intent regarding the

schools’ internal mail system but instead looked to their

actions, describing designated forums as “public property

which the State has opened for use by the public as a place

for expressive activity.” 460 U.S. at 45.

Here, the school officials affirmatively encouraged

the formation of clubs that were student-initiated and

noncurriculum related, thereby opening a forum with

much more than the minimum necessary permission.

Their subjective intention to exclude religious student

groups from the forum they had created is irrelevant to

the fact of the forum’s existence.

B. The Act Is Intended To Be Consistent with the

First Amendment Standard for Determining

that a Forum Is Opened.

The oft-stated purpose of the Equal Access Act was

to codify for public secondary schools this Court’s hold-

ing in Widmar v. Vincent, 454 U.S. 263. See S. Rep. No. 357,

98th Cong., 2d Sess. 7-8, 23, 28-29 (1984), reprinted in 1984

U.S. Code Cong. & Admin. News, 2348, __; H. Rep. No.

710, 98th Cong., 2d Sess. 3 (1984), reprinted in 1984 U.S.

Coce Cong. & Admin. News. __, __; 130 Cong. Rec.

58332 (daily ed. June 27, 1984) (statement of Sen. Hatch);

id. at $8338 (statement of Sen. Dixon); id. at $8342 (state-

ment of Sen. Hatfield); id. at S8358 (statement of Sen.

Biden); id. at $8364 (statement of Sen. Thurmond); 130

Cong. Rec. H7667 (daily ed. July 24, 1984) (statement of

Rep. Perkins). Both the court of appeals and the district

court in this case recognized that the purpose of the Act

was to codify Widmar. See Mergens, 867 F.2d at 1079 & n. 1,

20

quoting 130 Cong. Rec. $8355 (daily ed. June 27, 1984)

(statement of Sen. Levin); id. at 1080 (“The language of

the EAA closely tracks the holding of the Court in

Widmar”); Mergens, No. CV 85-0-426, slip op. at 7 n. 3

(“The Committee Report discusses Widmar at length, and

the language of the statute tracks, at least generally, the

holdings of Widmar, directing their application to public

secondary schools”).

Further, in defining a “limited open forum” for pur-

poses of the Act, Congress specifically adopted the First

Amendment standard for determining when a forum is

opened:

We have used the phraseology that has been

used by the courts and educational institutions

to circumscribe what would be called a limited

forum. We have used the term “limited forum,”

borrowing that from the courts.

130 Cong. Rec. $8342 (daily ed. June 11, 1984) (statement

of Sen. Hatfield).

There can be no question that the Act also incorpo-

rates from First Amendment law the insistence that “pol-

icy and practice” determine whether a forum has been

opened, regardless of school officials’ subjective intent.

Senator Leahy addressed this point at length:

It might have been possible under earlier versions

of the bill to argue that a limited open forum

resulted when a school made a formal decision to

have a limited open forum, for example, by

resolution_of the school board. Or perhaps the

decision might be not to have a limited open

forum. Whatever the official decision of the

school, the language of the earlier draft might

have been interpreted to allow the school’s

actions to differ from their words. Take the case

of a school that decided not to have a limited

open forum, having adopted a formal resolution

21

to that effect. Suppose that school then decided

to consider any student group wanting to meet

on school premises during noninstructional time

on a case-by-case basis.

Counsel to that school board might well

argue that the board’s resolution took the school

outside the coverage of this bill, since the bill

only applies to schools that have a limited open

forum, and the resolution states that the school

does not have a limited open forum. Since the

bill would not apply to this school, the school

could then turn around and allow only non-

religious clubs or perhaps allow only religious

clubs on school premises during noninstruc-

tional hours.

The point is that a limited open forum should

be — by what a school does, not by what it

says. The careful wording of the current draft

will protect both religious and secular interests

because it speaks with clarity about what a lim-

ited open forum means.

130 Cong. Rec. $8341 (daily ed. June 27, 1984) (statement

of Sen. Leahy) (emphasis added). Sen. Dole expressed the

same view: the Act’s definition of limited open forum

“will preclude a school from practicing one policy toward

the use of school facilities by student groups, while offi-

cialiy adopting another.” Id. at $8362 (emphasis added).

While the school officials in this case may say that no

forum has been created and that all student groups are

school-sponsored and curriculum related, the objective

facts demonstrate that many of the student groups are

neither truly school-sponsored nor curriculum related.

The school’s actions are determinative under the Act, and

this school district has created a limited open forum.

22

C. The Court of Appeals Correctly Held that West-

side High School Has Opened a Forum and that

the Forum Must be Open to the Bible Club.

In this case, school officials have by policy and prac-

tice opened the facilities of Westside High School for

indiscriminate use by student groups, subject only to

reasonable and nondiscriminatory time, place, and man-

ner restrictions. Unlike the school newspaper at issue in

Hazelwood, the forum in question here is not sponsored by

the school, it is not “taught by a faculty member during

regular class hours,” and students do not receive grades

or academic credit for their participation. See 484 U.S. at

__, 98 L. Ed. 2d at 603. Instead, (i) during noninstruc-

tional time, (ii) the school permits students to initiate

organizations (Tr. 274:16-25; 288:2-5; 507:5-25; 514:17-20),

(iii) with a wide variety of purposes, including commu-

nity service (Interact, Zonta), business (Future Business

Leaders of America), and recreation (Chess Club, Ski

Club, Subsurfers Club), and (iv) provides faculty “spon-

sors” who fulfill the role merely of a monitor and not an

instructor. (Tr. 401:23-402:18).

Thus, the forum at issue in this case is identical in

every material respect to the forum in Widmar, and the

school officials’ exclusion of the Bible Club was patently

improper. The subjective test that was the school officials’

ground for excluding the Bible Club is as much a viola-

tion of the First Amendment as an overt discrimination

between religious and nonreligious student groups, and

is equally a violation of the Equal Access Act and its

carefully tailored objective test for the existence of an

open forum.

23

CONCLUSION

The Eighth Circuit correctly held that the forum at

Westside High School included noncurriculum related

groups under the Equal Access Act, that the school had

therefore opened a limited open forum under the Act and

the First Amendment, and that the forum must be open to

the Bible Club on the same basis as other student organi-

zations. Moreover, the Eighth Circuit properly construed

the Equal Access Act to prescribe an objective test for the

existence of a limited open forum and for curriculum-

relatedness and school sponsorship, which is the stan-

dard required by the First Amendment under this Court’s

decisions eschewing arbitrary official discretion over

expressive activities. CASE respectfully urges this Court

to affirm the judgment of the U.S. Court of Appeals for

the Eighth Circuit in this case.

Date: October 26, 1989

Respectfully submitted,

WeENDELL R. Birp*

Davip J. Myers

Law Orrices o-r WeNDELL R. Birp

1150 Monarch Plaza

3414 Peachtree Rd., N.E.

Atlanta, GA 30326

(404) 264-9400

*Counsel of Record

Attorneys for Amicus Curiae