Opposition Brief — Garnett ex rel. Smith v. Renton School District No. 403

3 Supreme Court, U.S,

a , FILED

‘1+ NOV 2@ 1989

No. 89-641

JOSEPH F. SPANIOL, JR.

CLERK”

In The

Supreme Court of the United States

October Term, 1989

cnnssaite + —

v

RICHARD GARNETT, ET AL.,

Petitioners,

RENTON SCHOOL DISTRICT NO. 403, ET AL.,

Respondents.

4

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On Petition For Writ Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

4

_

RESPONSE TO PETITION

FOR WRIT OF CERTIORARI

7%

—

I. FRANKLIN HUNSAKER*

Scott M. STICKNEY

BULLIVANT, Houssr, BAILEY,

PENDERGRASS & HOFFMAN

1400 Pacwest Center

1211 S. W. Fifth Avenue

Portland, Oregon 97204

Telephone: (503) 228-6351

Attorneys for Respondents

*Counsel of Record

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

OR CALL COLLECT (402) 342-2831

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QUESTIONS PRESENTED

1. Whether, under the First Amendment or the

Equal Access Act (20 U.S.C. § 4071 et seq.) (“EAA”),

public high school officials are required to officially sanc-

tion and formally authorize a student-organized religious

club to meet on school premises during noninstructional

time where the avowed purpose of that club is to pray,

read and discuss the Bible and share religious beliefs and

where all other student groups at the school are curricu-

lum-related.

2. Whether the EAA unconstitutionally violates the

Establishment Clause by requiring secondary public

schools to allow students to hold religious meetings on

the school campus during or at times closely associated

with the school day.

3. Whether, under Articles I (Section 11) and IX

(Section 4) of the Washington Constitution, public high

school officials are required to refuse to officially sanction

and formally authorize a student-organized religious club

to hold religious meetings on the school campus during

or at times closely associated with the school day.

ii

TABLE OF CONTENTS

Page

ee ne sce bbaoe sb uaiaweeees i

ne ir ne CO eo cabot ccdavdciercen erm 1

PINES 6 fos cscsocindvusssedanbantedeceeeeamens 7

Defendants were required by the Establishment

Clause and also by the Washington Constitution to

deny Plaintiffs’ religious club permission to meet

in a classroom at LHS at a time closely associated

with the school day. The EAA does not apply to

this matter in that all school clubs challenged by

Plaintiffs are “curriculum-related.” Moreover, the

EAA is unconstitutional under the Establishment

Clause

S82 22 SFA DADAAAAAAAASAEASSCAABRSAS 2... eee ee ee a

1. Under the Establishment Clause, Plain-

tiffs’ constitutional rights were not vio-

| POPPE PT LTT EL OPTS ee erry

2. The Court of Appeals correctly ruled

that, because Defendants maintain a

“closed forum” at LHS, neither the EAA

nor the Free Speech Clause required

Defendants to authorize Plaintiffs’ reli-

gious club to meet at LHS. Defendants’

decision also was compelled by the

Washington Constitution. Moreover,

even if the EAA were to apply in this

matter, it is unconstitutional under the

Establishment Clause ..................

Conclusion

ili

TABLE OF AUTHORITIES

Page

Cases

Abington School District v. Schempp, 374 U.S. 203

ee ew eeceeececes 9, 18

Bell v. Little Axe Independent School Dist. No. 70,

Pe I OD CO, POUIDD, cw oc ccc cccccccsnes 10

Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675

cow aseacneepecsce 10

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

ST Rr 10

Collins v. Chandler Unified School Dist., 644 F.2d

759 (9th Cir.), cert. den. 454 U.S. 863 (1981) ....... 10

Edwards v. Aquillard, 482 U.S. 578 (1987)..... 9, 10, 18

Engel v. Vitale, 370 U.S. 421 (1962)................ 9, 18

Everson v. Board of Education, 330 U.S. 1 (1947) .17, 18

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

Se EE ED, cc ccc ccc cccccsccces 9, 13

Illinois v. Board of Education, 333 U.S. 203 (1947) .17, 18

Jager v. Douglas County School Dist., 862 F.2d 824

(11th Cir.), cert. den. 109 S. Ct. 2431 (1989)........ 10

Lemon v. Kurtzman, 403 U.S. 602 (1971) .......... 6, 18

Lubbock Civ. Lib. Union v. Lubbock Ind. Sch.

Dist., 669 F.2d 1038 (Sth Cir. 1982), cert. den. 459

ee OPE ca cscecccacees 10

Mergens v. Board of Educ. of Westside Com.

Schools, 867 F.2d 1076 (8th Cir. 1989), cert.

granted 109 S. Ct. 3240 (1989).............. 10, 11, 20

iv

TABLE OF AUTHORITIES ~— Continued

Page

Nartowicz v. Clayton County School Dist., 741

F.2d 538 (3d Cir. 1984), vacated on other grounds,

CFG TED, Fe Ge oc vaca ccccdecVancdesovencesase< 10

Perry v. School District No. 81, 54 Wn.2d 886, 344

P.2d 1036 (1959)........ evassPeabbetseeesssaraens 15

State Ex. Rel. Dearle v. Frazier, 102 Wn. 369, 173 P.

BP QU ate h dnde rapccssenes edd oteseUdansipetaes 15

Stone v. Graham, 449 U.S. 39 (1980)............... 9, 18

Tilton v. Richardson, 403 U.S. 672 (1971)............ 10

Wallace v. Jaffree, 472 U.S. 38 (1985).............. 9, 18

Weiss v. Bruno, 82 Wn.2d 199, 509 P.2d 973 (1973) .... 16

Widmar v. Vincent, 454 U.S. 263 (1981)......... 6, 9, 10

Zorach v. Clauson, 343 U.S. 306 (1952).............. 17

STATUTES AND CONSTITUTIONAL PROVISIONS

Equal Access Act, 20 U.S.C. §§ 4071-4074 ....... passim

U.S. Constitution, First Amendment............. passim

U.S. Constitution, Tiee Speech Clause............. 8, 12

Washington Constitution, Articles I (Section 11)

ES TI Ie a 555-5 60 66d WEP es coke e ews 5, 15, 16

OTHER AUTHORITIES

130 Cong. Rec. $2883 (Daily ed. March 20, 1984) .... 17

No. 89-641

a

—

In The

Supreme Court of the United States

October Term, 1989

_..

-

RICHARD GARNETT, ET AL.,

Petitioners,

RENTON SCHOOL DISTRICT NO. 403, ET AL.,

Respondents.

..

vr

On Petition For Writ Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

s.

vw

RESPONSE TO PETITION

FOR WRIT OF CERTIORARI

>.

4

STATEMENT OF THE CASE

Defendants-Respondents (“Defendants”) refused to

allow the religious club of Plaintiffs-Petitioners (“Plain-

tiffs”) to meet on the premises of Lindbergh High School

(“LHS”) with the official sanction and formal authoriza-

tion of the Board of Directors (“the Board”) of Renton

School District No. 403 (“the School District”). The

avowed purpose of Plaintiffs’ religious club is to pray,

read and discuss the Bible and share religious beliefs.

(C.R. 1, 41)!

The School District is a government entity that

receives federal financial assistance and is managed by

the Board and the District Superintendent. (C.R. 1, 41)

The School District oversees the operation of LHS, a

public secondary school in Renton, Washington. (E.R. 3)?

Following Congress’ enactment of the EAA, the

Board adopted Policy 6470 (E.R. 128) with the advice of a

Citizens Advisory Committee. (Kohlwes depo. pp. 32,

36-37) Policy 6470 sets forth guidelines or “criteria” that

are used by the Board to determine whether to approve

co-curricular activities. (Bumgarner depo. p. 15; Kohlwes

depo. p. 37) Policy 6470 provides in pertinent part:

The criteria to be used for approving co-

curricular activities should include but not be

limited to:

1. the purposes and/or objectives shall be

an extension of a specific program or course

offering,

2. the activity shall be acceptable to the

community,

1 References to “C.R.” are to the Clerk’s Record in the

District Court.

2 References to “E.R.” are to the Excerpt of Record filed

with the Court of Appeals.

3 Deposition transcripts are included in the Record in this

matter pursuant to Stipulation. (C.R. 90; see also Clerk's

Record entry “**” of January 25, 1988) However, because those

depositions were not given separate numbers, they will be

referred to by the name of the deponent.

3

3. the activity shall have carry-over values

for lifetime activities,

4. the group shall be supervised by a qual-

ified employee,

5. the cost of the activity must not be pro-

hibitive to student or District,

6. the activity must comply with Title IX

requirements,

7. the activity must take place on school

premises unless approved in advance by the

school principal, and

8. the activity must not be secretive in

nature.

[E.R. 128; Plaintiffs’ Appendix (“Pet. App.”) 5a-6a] Policy

6479 also states that the District “does not offer a limited

open forum.” (/d.)

Pursuant to Policy 6470, Defendants provide LHS

students the opportunity to meet as officially recognized

and formally authorized student clubs. Those clubs may

freely use school facilities and meet on school premises

during noninstructional time - before or after actual

classroom instruction. (E.R. 3) Pursuant to Policy 6470,

each club or group must be supervised by a School Dis-

trict employee. In order to meet as an officially

* Each club or group has an assigned faculty advisor who

periodica!ly may lead the activities of the club. Those advisors

may specifically perform instruction during group meetings.

The advisor evaluates participation in club activities to deter-

mine whether a student should continue participating in a

club. On any given day, a faculty advisor could assume a

leadership position in any of the clubs. The advisors consult

with the students in setting the agenda for the clubs. (Barker

depo. pp. 45, 47-48, 54, 56)

recognized and formally authorized student group or

club, it must either be listed on the School District's

Master List of Clubs, Activities and Trips (the “Master

List”) (E.R. 88-92, 128) or be given interim approval to

meet by the Superintendent, subject to the Board’s deci-

sion whether to add the group or club to the Master List.5

The primary objective of Policy 6470 is to provide

students “a broad offering of purposeful learning experi-

ences” (E.R. 128) in order to achieve broad learning objec-

tives. (Kohlwes depo. pp. 32, 36-37) Policy 6470 allows

the Board to identify and approve “those activities which

are consistent with the [School] District’s curricular objec-

tives” but are not formal classroom instruction activities.

(E.R. 128)

Another objective of Policy 6470 is to develop stu-

dents’ character, democratic growth and understanding

of others. (Barker depo. p. 20) Those broad student

learning objectives, and the co-curricular activities

designed to achieve them, are part of the actual second-

ary school curriculum in that there is a direct relationship

between participation and such co-curriculum activities

in classroom performance. Indeed, students involved in

co-curricular activities have consistentiy demonstrated a

tendency to do better in school. (Bumgarner depo. pp. 6,

11, 15; E.R. 18)

> Of the 48 clubs and activities on the 1986-1987 Master

List (E.R. 88-92), Plaintiffs challenge 15 as “noncurriculum-

related groups.” (E.R. 17) Both the District Court and the Court

of Appeals, however, ruled that all 15 of the challenged clubs

are related to the LHS curriculum and therefore cannot be

considered “noncurriculum-related” under the EAA. (Pet.

App. 15a-16a, 24a)

Plaintiffs are members or former members of a stu-

dent religious club initially known as “Club Action” and

later called “High-Tops.” Plaintiffs applied to the School

District for permission to meet on the LHS campus as an

officially recognized and formally authorized club. (C.R.

1, 41) Their avowed purpose is to pray, read and discuss

the Bible and share religious beliefs. (/d.) Pursuant to

Policy 6470, the School District denied that request

because the club was not curriculum-related and also

because the club meetings would violate the Establish-

ment Clause and also Articles I (Section 11) and IX (Sec-

tion 4) of the Washington Constitution. (E.R. 4, 14)

Plaintiffs filed a lawsuit in the United States District

Court for declaratory and injunctive relief to compel

Defendants to allow Plaintiffs’ club to meet on LHS prem-

ises. The District Court consolidated argument on Plain-

tiffs’ Motion for Preliminary Injunction with trial on the

merits. (C.R. 70) The District Court denied Plaintiffs’

Motion, dismissed Plaintiffs’ claim under the EAA and

found that none of the challenged clubs are “noncur-

riculum-related.” (Pet. App. 20a-38a) Because the manda-

tory provisions of the EAA had not been triggered, the

Court did not address the constitutionality of the EAA.

(Id. at 22a, 35a) The District Court also rejected Plaintiffs’

constitutional arguments and ruled that, had Defendants

allowed Plaintiffs’ religious club to meet, Defendants

would have violated the Establishment Clause and also

Articles I (Section 11) and IX (Section 4) of the Washing-

ton Constitution. (Jd. at 30a-37a)

The Court of Appeals affirmed the Judgment of the

District Court and ruled that, had Defendants allowed

Plaintiffs’ religious club to meet on the LHS campus

Defendants would have violated the second and third

prongs of the three-part Establishment Clause test set

forth in Lemon v. Kurtzman, 403 U.S. 602 (1971), in that

such permission would have the primary effect of

advancing religion and would impermissibly entangle

church and state. (Pet. App. 8a-12a)

The Court of Appeals also rejected Plaintiffs’ chal-

lenge under the Free Speech Clause of the First Amend-

ment. (Id. at 12a-14a) The Court of Appeals ruled that

because LHS is not a “limited public forum,” Defendants

may limit student expression in any reasonable way and

that Policy 6470 is not unreasonable on its face nor were

Defendants “disingenuous” in its application. (Id. at

12a-13a) In addition, the Court of Appeals ruled that,

because of the Establishment Clause constraints, Defen-

dants were required to refuse to allow Plaintiffs’ religious

club to meet. (Jd. at 13a)

The Court of Appeals also distinguished Widmar v.

Vincent, 454 U.S. 263 (1981) (where a religious group was

allowed to meet on the campus of a college that allowed a

diverse range of student groups to meet) because of “the

impressionability of young [high school] students, com-

pulsory attendance laws that make [high school] students

a captive audience, and the role of public schools in

inculcating democratic ideals.” (Pet. App. 10a-1la, 13a)

Based on its independent review of the Record, the

Court of Appeals further ruled that the EAA does not

apply because LHS did not provide a “limited open

forum.” (Id. at 14a-16a) The Court of Appeals ruled that

all of the challenged clubs at LHS “are reiated to the

school’s curriculum.” (/d. at 15a) The Court of Appeals

recognized that the challenged clubs “are supervised by

faculty advisors and are so closely related to course work

or are so integral a part of the traditional and official

school programs that they could not reasonably be

termed ‘noncurriculum related.’” (Jd. at 15a-16a) The

Court of Appeals also ruled that LHS and the District

“had considered instructional goals and, in accordance

with a written policy, made the [challenged] clubs a part

of [LHS’s] curriculum.” (Jd. at 16a)

y%

4

ARGUMENT

Defendants were required by the Establish-

ment Clause and also by the Washington Con-

stitution to deny Plaintiffs’ religious club

permission to meet in a classroom at LHS ata

time closely associated with the school day.

The EAA does not apply to this matter in that

all school clubs challenged by Plaintiffs are

“curriculum-related.” Moreover, the EAA is

unconstitutional under the Establishment

Clause.

The decisions of the District Court and Court of

Appeals in this matter are correct for the following

reasons:

1. The Establishment Clause prohibited Defendants

from authorizing Plaintiffs’ religious club to meet at LHS.

The clear mandate of the Establishment Clause out-

weighed Plaintiffs’ limited free speech rights at the closed

forum at LHS and required that Defendants deny permis-

sion for Plaintiffs’ religious club to meet on campus.

2. The Court of Appeals correctly ruled that,

because Defendants maintain a “closed forum” at LHS,

neither the EAA nor the Free Speech Clause required

Defendants to authorize Plaintiffs’ religious club to meet

at LHS. Defendants’ decision also was compelled by the

Washington Constitution. Moreover, even if the EAA

were to apply in this matter, it is unconstitutional under

the Establishment Clause.

Each of those reasons will now be discussed.

B Under the Establishment Clause, Plaintiffs’

constitutional rights were not violated.

This matter involves Defendants’ refusal to officially

sanction and formally authorize Plaintiffs’ religious club

and Defendants’ attendant denial of permission for Plain-

tiffs’ club to meet on school premises with a faculty

advisor in attendance at times closely associated with the

school day in order to pray, read and discuss the Bible

and share religious beliefs. Thus, this matter involves a

student request for official sponsorship and active pro-

motion of religious student expression. As correctly rec-

ognized by the Court of Appeals, but ignored by

Plaintiffs, in this context Plaintiffs’ limited free speech

rights have to be balanced against the mandate of the

Establishment Clause requiring avoidance of official

sponsorship and advancement of religion. (Pet. App.

7a-14a)

In balancing these competing constitutional interests,

the Court of Appeals correctly concluded that the man-

date of the Establishment Clause prohibits the sanction-

ing of Plaintiffs’ religious club. The Court of Appeals

recognized the special characteristics of the public sec-

ondary school environment that require vigilance in

avoiding the injection of religion into those schools -

compulsory attendance laws, the role of public schools in

inculcating democratic ideals into students and, most

significantly, the impressionability of public secondary

school students.®

Because of this unique role played by public educa-

tion in our society, this Court has consistently disallowed

the divisive influence of religion in public secondary

schools. See, e.g., Edwards v. Aquillard, 482 U.S. 578 (1987);

Wallace v. Jaffree, 472 U.S. 38 (1985); Stone v. Graham, 449

U.S. 39 (1980); Abington School District v. Schempp, 374

U.S. 203 (1963); Engel v. Vitale, 370 U.S. 421 (1962).

This Court has repeatedly recognized the vast differ-

ences between a high school and a university. See Hazel-

wood School District v. Kuhlmeier, 484 U.S. 260, 98 L. Ed. 2d

592, 602-03 (1988); Edwards v. Aquillard, supra, 482 U.S. at

583-85; Widmar v. Vincent, supra. While this Court in

Widmar, supra, held that a religious group was allowed to

meet on the campus of a college that allowed a diverse

range of student groups to meet, the students were adults

rather than impressionable high school students. This

Court has repeatedly recognized that the impres-

sionability of secondary school students is a crucial factor

when applying the Establishment Clause prohibition

against the advancement of religion in public secondary

6 The Court of Appeals also correctly ruled that LHS “is

not a First Amendment limited public forum.” (Pet. App. 12a)

10

schools. Edwards v. Aquillard, supra, 482 U.S. at 583-85;

Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 683

(1986); Widmar v. Vincent, supra, 454 U.S. at 274 n. 14;

Tilton v. Richardson, 403 U.S. 672, 685-86 (1971). Accor-

dingly, the Court of Appeals correctly ruled that “the

impressionability of young students” is a crucial factor in

this matter. (Pet. App. 10a-11a)

The Court of Appeals correctly recognized that,

“[w]hen the explicit Establishment Clause proscription

against prayer in the public schools is considered, the

protections of political and religious speech are inap-

posite.” (Pet. App. 13a) Indeed, with only one exception,

every federal appellate court that has examined similar

religious group access claims in public secondary or ele-

mentary schools has held that the school district’s Estab-

lishment Clause concerns outweigh a plaintiff’s free

speech concerns and that, therefore, access is prohibited.”

? See Bell v. Little Axe Independent School Dist. No. 70, 766 F.2d

1391 (10th Cir. 1985); Nartowicz v. Clayton County School Dist., 741

F.2d 538 (3rd Cir. 1984), vacated on other grounds 475 U.S. 534 (1986);

Lubbock Civ. Lib. Union v. Lubbock Ind. Sch. Dist., 669 F.2d 1038 (5th

Cir. 1982); cert. den. 459 U.S. 1159 (1983); Collins v. Chandler Unified

School Dist., 644 F.2d 759 (9th Cir.), cert. den. 454 U.S. 863 (1981);

Brandon v. Board of Ed. of Guilderland Cent. Sch., 635 F.2d 971 (2nd

Cir. 1980); see generally Jager v. Douglas County School Dist., 862 F.2d

824 (11th Cir.), cert. den. 109 S. Ct. 2431 (1989); but see Mergens v.

Board of Educ. of Westside Com. Schools, 867

(Continued on following page)

11

Plaintiffs’ arguments are flawed in that the Record

clearly establishes that Plaintiffs are seeking the sponsor-

ship of the School District. Plaintiffs are requesting the

use of school facilities for regularly scheduled religious

activities at a time closely associated with the school day.

The meetings of Plaintiffs’ religious club would have to

be attended by a School District employee. Plaintiffs are

seeking the official label of a formally authorized club.

Indeed, the Court of Appeals correctly ruled in this mat-

ter that Defendants did not prohibit Plaintiffs “from dis-

cussing religion at school.” (Pet. App. 14a) There is not a

scintilla of evidence that Defendants ever discouraged

Plaintiffs from sharing their religious faith with other

students or discouraged anyone from attending or being

involved in Plaintiffs’ religious club. Defendants merely

refused to officially authorize Plaintiffs’ religious club or

allow the :lub to formally use school facilities such that

(Continued from previous page)

F.2d 1076 (8th Cir. 1989), cert. granted 109 S. Ct. 3240 (1989)

[Mergens is similar to this matter in that public secondary

school students were seeking the approval of the school dis-

trict to meet as a religious group. The Court of Appeals ruled

on the facts presented there (despite citing the decision of the

Court of Appeals in this matter) that the school district

allowed “noncurriculum-related” clubs to meet on the campus.

Therefore, the Court ruled that the EAA applied and forbade

discrimination against the students’ proposed club on the basis

of the club’s religious nature. The “curriculum-relatedness” of

a student group is essentially a factual inquiry that must be

made on a case-by-case basis. Thus, the Court’s conclusion in

Mergens regarding the EAA is not instructive to this matter. In

this matter, the Court of Appeals correctly ruled, after inde-

pendently reviewing the Record, that all of the challenged

clubs are “curriculum-related.” (Pet. App. 14a-16a)).

12

students, parents or the public would perceive that Plain-

tiffs’ religious club had the imprimatur of the School

District.

Thus, Plaintiffs are clearly seeking school sponsor-

ship for their religious activities. That is why the District

Court and Court of Appeals correctly ruled that the

Establishment Clause prohibits Defendants from sanc-

tioning Plaintiffs’ religious club.

2. The Court of Appeals correctly ruled that,

because Defendants maintain a “closed forum” at LHS,

neither the EAA nor the Free Speech Clause required

Defendants to authorize Plaintiffs’ religious club to

meet at LHS. Defendants’ decision also was compelled

by the Washington Constitution. Moreover, even if the

EAA were to apply in this matter, it is unconstitutional

under the Establishment Clause.

The Court of Appeals correctly ruled that, because

Defendants maintain a “closed forum” at LHS, neither

the EAA nor the Free Speech Clause required Defendants

to authorize Plaintiffs’ religious club to meet at LHS. (Pet.

App. 12a-16a) That ruling was based on the Court’s thor-

ough review of the language and legislative history of the

EAA, Policy 6470 in its entirety and an independent

review of the Record.

The crucial issue under the EAA is whether Defen-

dants allowed “noncurriculum-related” student groups to

use school facilities such that LHS became a “limited

open forum” under the EAA. The corollary and related

issue under the First Amendment is whether Defendants,

13

by “policy or practice,” opened LHS to indiscriminate

use.§

Of approximately 50 clubs on the School District's

Master List of approved and authorized student clubs,

Plaintiffs challenged 15 and contended that those 15 clubs

are “noncurriculum-related.” The Court of Appeals, as

did the District Court, correctly ruled that all of the

challenged clubs at LHS “are an extension of the courses

and programs of the [D]istrict” and “are supervised by

faculty advisers and are so closely related to course work

or are so integral a part of the traditional and official

school programs” that Defendants retained a “closed

forum” at LHS. (Pet. App. 13a, 15a-16a)

In reaching that conclusion, the Court of Appeals

first analyzed Policy 6470. Examining the entire Policy,

the Court correctly ruled that the Policy is not unreason-

able on its face nor are Defendants “disingenuous” in

applying it. (id. at 13a) All of the 15 clubs challenged by

Plaintiffs are extensions of curricular courses and pro-

grams at LHS, while Plaintiffs’ religious club is not. The

Court of Appeals correctly concluded that in authorizing

the challenged clubs, Defendants considered instructional

goals and, in accordance with the written Policy, specifi-

cally made those clubs a part of the curriculum

8 In Hazelwood School District v. Kuhlmeier, supra, 98 L. Ed.

2d at 602-04, this Court held that a “public forum” in a high

school is created only if school authorities by “policy or prac-

tice” open school facilities for “indiscriminate use” and there

must be a finding of a “clear intent to create a public forum.”

There clearly is no such policy or practice by the School Dis-

trict in this matter.

14

at LHS. (Id. at 15a-16a) Therefore, Defendants correctly

denied authorization for Plaintiffs’ religious club to meet,

as the District Court and Court of Appeals held.

In concluding that none of the challenged clubs are

“noncurriculum-related” — a term that is not defined in

the EAA — the Court of Appeals also examined the legis-

lative history of the EAA and correctly ruled that Con-

gress did not intend to depart from the traditional notion

that school districts retain broad discretion and authority

to define their curriculum. (Pet. App. 15a) However, the

Court correctly concluded that it could not completely

defer to Defendants’ determination. Thus, the Court inde-

pendently reviewed the Record and correctly ruled that

“all clubs at [LHS] are related to [LHS’s] curriculum.”

(Id.) Therefore, the Court correctly concluded that the

EAA does not apply to this matter.

Even if a “limited open forum” was somehow created

by Defendants at LHS, the EAA cannot compel Defen-

dants to allow Plaintiffs’ religious club to meet on school

premises in violation of the Washington Constitution, as

the District Court correctly ruled.®

The District Court ruled that “[t]he mandatory provi-

sions of the EAA may not be applied in Washington State

to permit religious organizations to meet on school

% This issue was raised and briefed by Defendants in their

Appellees’ Brief filed with the Court of Appeals (at 23-29).

However, because the Court of Appeals ruled that the EAA did

not apply, it did not reach that issue.

15

premises owing to provisions of this state’s constitution!®

and relevant case law construing their application.” (Pet.

App. 3la) The District Court held that the Washington

Constitution “requires a far stricter separation of church

and state than the federal constitution” (id.), and correctly

concluded:

Even if [LHS] had created a ‘limited open

forum,’ and even with the neutral operation of

the EAA allowing students to meet on school

premises but without schoo! sponsorship, under

Washington’s constitutional law such meetings

would (1) tend to introduce sectarian influence

into [LHS] and (2) would result in an imper-

missible appropriation of public money or prop-

erty for a religious purpose. The EAA itself

provides that a state need not break its own

laws in order to observe EAA requirements.

(Id. at 37a)

10 The District Court correctly ruled that if Plaintiffs were

granted their requested relief, Defendants would be compelled

to violate two distinct provisions of the Washington Constitu-

tion — Article I, Section 11, and Article IX, Section 4.

Article I, Section 11, provides in pertinent part: “No public

money or property shall be appropriated for or applied to any

religious worship, exercise or instruction, or the support of any

religious establishment.” That ban on the use of public funds

for religious purposes is, as the District Court noted, “absolute

and without exception.” (Pet. App. 33a) See Perry v. School

District No. 81,54 Wn.2d 886, 344 P.2d 1036 (1959); State Ex. Rel.

Dearle v. Frazier, 102 Wn. 369, 173 P. 35 (1918).

(Continued on following page)

16

The District Court correctly concluded that the “EAA

does not require the Renton School District to permit an

unconstitutional use of school property.” (Id. at 34a) In

reaching that conclusion, the Court looked to the lan-

guage of the EAA, which provides in pertinent part that

“[nJothing in this subchapter shall be construed to autho-

rize the United States or any State or political subdivision

thereof . . . to sanction meetings that are otherwise

unlawful [or] . . . to abridge the constitutional rights of

any person.” 20 U.S.C. § 4071 (d) (5) and (7).

Congress, in considering equal access proposals,

surely was aware of the provisions of the Washington

Constitution that mandate absolute separation between

government and religion. Several months before passage

of the EAA, Senator Gorton of Washington drew upon his

knowledge of the Washington Constitution to convince

his colleagues of the importance of respecting states’

rights and state constitutional provisions when consider-

ing passage of a constitutional amendment that would

have required equal access. Specifically, he stated that

“nothing in [the amendment] . .. would undermine those

(Continued from previous page)

Article IX, Section 4, provides: “All schools maintained or

supported wholly or in part by the public funds shall be

forever free from sectarian control or influence.” As noted by

the District Court (Pet. App. 31a-32a), the Washington Supreme

Court has construed that constitutional provision as an express

and absolute prohibition of the allowance of any sectarian

influence in public schools. Weiss v. Bruno, 82 Wn.2d 199, 509

P.2d 973, 978 (1973).

17

State constitutional provisions.” 130 Cong. Rec. $2883

(Daily ed. March 20, 1984).

Accordingly, the plain language of the EAA makes it

clear, as the District Court correctly concluded (Pet. App.

34a-35a), that Congress did not intend to preempt the

Washington Constitution. The District Court correctly

ruled that “[t]he conclusion is unavoidable that if Plain-

tiffs were to obtain their requested relief, the meetings of

their religious club on school premises would amount to

at least a slight benefit to religion, a benefit that is prohib-

ited by Washington’s Constitution.” (Pet. App. 34a)

Finally, the EAA unconstitutionally violates the

Establishment Clause by requiring secondary public

schools to allow students to hold religious meetings on

the school campus during or at times closely associated

with the school day."!

The Establishment Clause was intended to erect “a

wall of separation between church and state” [Everson v.

Board of Education, 330 U.S. 1, 15-16 (1947)], a wall that

“must be kept high and impregnable” [Illinois v. Board of

Education, 333 U.S. 203, 212 (1947)]. In erecting that wall,

the founders of the constitution recognized the wisdom

of absolute separation between church and state - “com-

plete separation between the state and religion is best for

the state and best for religion.” Illinois v. Board of Educa-

tion, supra, 333 U.S. at 231-32; see Zorach v. Clauson, 343

'! While the constitutionality of the EAA was raised before

the District Court and Court of Appeals, neither court

addressed that issue because of the respective rulings by the

courts that Defendants’ conduct did not trigger application of

the EAA. (Pet. App. 16a, 35a)

18

U.S. 306, 312 (1952); Everson v. Board of Education, supra,

330 U.S. at 26-27.

This Court’s decisions'? make it clear that the origin

of religious activity - whether that activity is student or

state-initiated — is irrelevant when determining whether

an Establishment Clause violation has occurred. The cru-

cial determination is the extent of government sponsor-

ship or support of the activity.

Plaintiffs’ constitutional analysis focuses primarily

on whether Defendants violated Plaintiffs’ free speech

and free exercise rights and fails to balance those rights

against the Establishment Clause proscription against

government entanglement with religion. The crucial issue

is whether the EAA, in requiring Defendants to allow

Plaintiffs’ religious club to meet at LHS, would violate

the Establishment Clause.

When analyzed under the three-part test set forth in

Lemon v. Kurtzman, supra, 403 U.S. at 612-13, the EAA is

unconstitutional because (1) it has an impermissible reli-

gious purpose rather than a secular purpose, (2) its prin-

cipal or primary effect advances religion, and (3) it fosters

excessive government entanglement with religion.

In the coercive high school setting with compulsory

attendance laws, a congressionally-mandated policy that

allows students to engage in voluntary religious practices

impermissibly creates the appearance to impressionable

students that the state has placed its imprimatur on those

'2 See, e.g., Edwards v. Aquillard, supra; Wallace v. Jaffree,

supra; Stone v. Graham, supra; Abington v. Schempp, supra; Engel

v. Vitale, supra; Illinois v. Board of Education, supra.

19

religious practices. Also, teacher or faculty monitoring,

which is contemplated by the EAA and is required pur-

suant to Policy 6470, would excessively entangle govern-

ment and religious affairs, as would the fact that, under

Policy 6470, Defendants would have to recognize and

place Plaintiffs’ religious club on the Master List in order

for the club to be allowed to meet.

—

20

CONCLUSION

This Court should deny Plaintiffs’ Petition for Writ of

Certiorari in that the decision of the Court of Appeals is

correct for the reasons discussed above.

Defendants, however, acknowledge that this case

presents issues substantially similar to those presented in

Mergens v. Board of Educ., supra, in which this Court has

granted certiorari [109 S.Ct. 3240 (1989) (No. 88-1597)].

Therefore, if this Court grants certiorari in this matter,

Defendants request that this Court accept briefs on the

merits. There are issues and arguments (e.g., the impres-

sionability of high school stucents, the applicability of

the Washington Constitution and the unconstitutionality

of the EAA) that have not been raised or discussed in

Mergens. Also, if this Court grants certiorari, this Court

should hear oral argument in this matter at the same time

that it hears the oral argument in Mergens.

Respectfully submitted,

I. FRANKLIN HUNSAKER*

Scott M. STICKNEY

BULLIVANT, Houser, BAILEY,

PENDERGRASS & HOFFMAN

1400 Pacwest Center

1211 S. W. Fifth Avenue

Portland, Oregon 97204

Telephone: (503) 228-6351

Attorneys for Respondents

*Counsel of Record

November 20, 1989

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