Opposition Brief — Niemeyer v. Oroville Union High School District

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No. 00+1074

IN THE

Supreme Court of the United States

CHRIS NIEMEYER and JASON NIEMEYER,

Petitioners,

Vv.

OROVILLE UNION HIGH SCHOOL DISTRICT, e¢ al.,

Respondents.

On PETITION FOR A Writ OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION

CHRISTIAN MARK KEINER

Counsel of Record

MICHELLE CANNON

LAURA LEE BRIGGS

ANNE SHERLOCK

' GIRARD & VINSON

Attornevs for Respondents

1006 Fourth Street

Eighth Floor

Sacramento, CA 95814-3326

” (916) 446-9292

164909 J Counsel Press LLC

(800) 274-3321 + (800) 359-6859

i

QUESTION PRESENTED

. Whether public school educators are entitled to

immunity from money damages when disapproving

sectarian and proselytizing high school graduation

speech pursuant to the “compelling state interest”

in compliance with the First Amendment,

Establishment Clause.

il

THE PARTIES

The School District respectfully asserts the only proper

petitioners are Chris Niemeyer and Jason Niemeyer for

purposes of 42 U.S.C. § 1983 alleged damage claims.

Petitioners claim as proper parties Chris Niemeyer and Jason

Niemeyer, who were Plaintiffs and Appellants in the District

Court and Ninth Circuit Court of Appeals. Petitioners also

claim as proper parties other Appellants in the Court of

Appeals, who were dismissed by both the Court of Appeals

and the District Court as lacking standing to bring their

claims.

Respondents are the Oroville Union High School District

(“School District”); Barry Kayrell, individually and as

Superintendent of the Oroville Union High School District;

Larry Payne, individually and as Principal of Oroville Union

High School; Jeff Plotnick, individually and as Vice-

Principal of Oroville Union High School (“School

Officials”); David Bruce, Roy Fisher, Kenneth Harlan, Susan

Neben, Lillaine Speese, as members of the governing board

of Oroville Union High School District. These Respondents

were both Defendants and Appellees below. (Because all

Defendants/Appellees were held to be immune from damage

claims, Respondents see no reason to now single out any

one individual defendant in the case caption.)

lil

TABLE OF CONTENTS

Page

Spm PUNNNING Set esi de ese i

WM erie dives oCik. Rae li

Pe EN. 05 a a A ill

Table of Cited Authorities ..................... Vv

Relevant Constitutional Provisions ............. 1

Pere 7, esr ss... 2

Mm oe se. 50S a 2

. - POP ONNNNDS is ck. 3

C. Brief Statement of Facts................. 5

Reasons for Denying the Writ ................. 9

A. There Is No Conflict Among the Circuits

Regarding Graduation Ceremonies. ....... 9

B. Equitable Claims Remain Moot and No

Petitioner Has Equitable Relief Standing.

PROM MURA awn che Gira tiedd pack ockun ci 13

C. There Is No Basis to Revive Damage Claims

a ,, See ee eS 15

iv

Contents

Page

1. There Was No Potential Deprivation of

Constitutional Rights in These

or rear rr rs 16

2. There Was No “Clearly Established”

Right During the Time Period At

ee PPP Terr Te! re Tr eee 17

D. The Contours of the Right for First

Amendment Free Speech Analysis Must

Include Hazelwood, Which Permits

Administrative Limitations on Speech. .... 20

. E. Petitioners’ Proposed Student Right to

“Religious Invitation” Was Not Raised Below

and is Contrary to Public School Precedent.

ena pccegessssdndes Keka Keane sete 22

Cumbia ooo. occ 6 a 5 co a dtemeaes GaP ee rata es 26

v

TABLE OF CITED AUTHORITIES —

Page

Cases:

ACLU v. Black Horse Pike Reg’l. Bd. of Educ.,

84 F.3d 1471 (3d Cir. 1996) ................. 9,11

Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034

CUD T 5S ee RO Cee eee 18, 19

Baxter by Baxter v. Vigo County Sch. Corp., 26 F.3d

Tae CFE GH. TO) os ns SA 18

B.C. by and through Powers v. Plumas Unified Sch.

Dist., 192 F.3d 1260 (9th Cir. 1999), amended by

See War SPO 5 d0 se Sede eT eee ee 14, 18, 19

Bennett v. Livermore Unified Sch. Dist., 193 Cal.

App. 3d 1012, 238 Cal. Rptr. 819 (1987) ...... 17, 21

Berger v. Rennselaer Cent. Sch. Corp., 982 F.2d 1160

be: BOY pa Sy Parry ohne bate gree er ae 24

Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 106 S. Ct.

SRPPEEOE Vii cessed Se ee 20, 24

Bigelow v. Virginia, 421 U.S. 809, 95 S. Ct. 2222

4 Jo | SRR SRIRSORES HE Aan ri casera rap rate: aan erie Canale faacy aan 14

Brewster v. Board of Educ., 149 F.3d 971 (9th Cir.

SOU See Se eee ie aed eee a 15, 18, 19

vi

Cited Authorities

Page

Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900

(TDGOD .. é.cinc.cccenand ccdasbaneceees diene 23

Ceniceros by & through Risser v. Board of Trustees,

106 F.3d S78 (Sta Cir. 1997) 0c wccvvescecces 14

Chandler v. James, 180 F.3d 1254 (11th Cir.

Pere r err ee 10, 11, 12, 13

Chandler v. Siegelman, 230 F.3d 1313 (11th Cir.

yr rrr ers 9, 10, 11, 12, 13

Cole v. Oroville Union High Sch. Dist., 228 F.3d

1092 (9th Cir. 2000) ....... 4,5, 9, 16, 11, 13, 15, 17

Coles by Coles v. Cleveland Bd. of Educ., 171 F.3d

369 (6th Cir. 1999), rehearing and en banc review

dented, 163 F.36 SSG USSF) a weccvevesessaes 10

Collins v. Chandler Unified Sch. Dist., 644 F.2d 759

(9th Cir. 1981), cert. denied 454 U.S. 863, 102

S. Ce. SAR Bk oak i dens crnsin Ges ded 10, 24

County of Sacramento v. Lewis, 523 U.S. 833, 118

ey Ct | eee 15, 16, 17, 19

Doe v. Duncanville Indep. Sch. Dist., 70 F.3d 402

(Sta Cae. SOGSY oo cic Ck vids cane ins eenedeere _ 10

Vii

Cited Authorities

Page

Doe v. Madison Sch. Dist. No. 321, 147 F.3d 832

(9th Cir. 1998), vacated and remanded, 177 F.3d

789 (9th Cir. 1999) opinion withdrawn, review,

or rehearing granted, 1999 U.S. App. LEXIS 5051

RR RUE FCG belie nha kaddschun ddince 14

Doe v. Santa Fe Indep. Sch. Dist., 168 F.3d 806 (Sth

Cir. 1999), affirmed on other grounds, 530 U.S.

290, 120 S. Ct. 2266 (2008)... 65. c cc ccc cee passim

Edwards v. Aguillard, 482 U.S. 578, 107 S. Ct. 2573

GED vc Eels 850s SHNNG SLRs ASCs Dkk 585s 16, 24

Engel v. Vitale, 370 U.S. 421, 82 S. Ct. 1261 (1962)

hl SW URU GMa Gees Deeb es eiciep sede N bade FR Siem a 16

F.C.C. v. Pacifica Found., 438 U.S. 726, 98 S. Ct.

PP PN aii 45 Wa sida cheb Ses asi ask 24

Fowler v. Rhode Island, 345 U.S. 67 73 S. Ct. 526

CEOs Sh ab Gaw 6 bRed bcd dauin eA Meee oi 23

Friends of the Earth Inc. v. Laidlaw Envtl. Servs.

(TOL) Inc., 528 U.S. 167, 120 S. Ct. 693 (2000)

Be Pr ee os yr ee Pe EES Oe ee os

Frisby v. Schultz, 487 U.S. 474, 108 S. Ct. 2495

Fe LUN ae, SSP OM ae ie eT a AT TTS 24

Grupo Mexicano de Desarrollo v. Alliance Bond

Fund, Inc., 527 U.S. 308, 119 S. Ct. 1961 (1999)

vill

Cited Authorities

Page

Guidry v. Broussard, 897 F.2d 181 (Sth Cir. 1990)

ite Ss cand PORCODE RRO is ae, 9

Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727

POSSE S vida vekaded duwbncaeensereaeees 15, 18, 19

Harris v. Joint Sch. Dist. No. 241, 41 F.3d 447 (9th

Cir. 1994), cert. granted, vacated, and remanded,

515 U.S. 1154, 115 S. Ct. 2604 (1995), on

pomhaind,, G2 FD GAGS CRS 6 60s on tkndweekas 14

Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260,

oP ee i er 3, 4, 19, 20, 21, 22

Hurley v. Irish-American Gay & Lesbian & Bisexual

Group, 515 U.S. 557, 115 S. Ct. 2338 (1995) ... 24

Illinois ex rel. McCollum v. Board of Education, 333

is ee 7 hee oo). | ear 24

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

PES SEY i é0nanddnncnc ened eeeeuuan 10

Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963

Ro cniwited mesa ad eauanuemen 9

Lee v. Weisman, 505 U.S. 577, 112 S. Ct. 2649

CRONE A bres eseW cleanness 4, 9, 11, 16, 17, 22, 23

Lehman v. Shaker Heights, 418 U.S. 298, 94 S. Ct.

Fe Ee ry eer ee re pe ape pee 24

a. <

ix

Cited Authorities

Page

Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105

cc 3 | SRI ir eng RR ora ORO Pe ene COPD 16, 17

Lopez v. Tulare Joint Union High Sch. Dist., 34 Cal.

App. 4th 1302, 40 Cal. Rptr. 2d 762 (1995)

KERGEEEGS VAL DRED LS CALE Eo ala eee 21

Los Angeles v. Lyons, 461 U.S. 95, 103 S. Ct. 1660

PPPs ede AS 14

Maciariello v. Sumner, 973 F.2d 295 (4th Cir.

inhi EOE EEE Cee Oe PO aT nT Dineen 18

Madsen v. Women’s Health Ctr., Inc.,512 U.S. 753,

ee a ee 24

McDade v. West, 223 F.3d 1135 (9th Cir. 2000)... 15

Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530

RN I ee ee 24

N.C.A.A. v. Smith, 525 U.S. 459, 119 S. Ct. 924

NCR i a eG ee 23

Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517

tsk een 10

Perumal v. Saddleback Valley Unified Sch. Dist., 198

Cal. App-3d 64, 243 Cal. Rptr. 545 reer ans. Fi

x

Cited Authorities

Page

Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364

SRPOOD 60 060d dccetisersetrnnenen 14

Roberts v. Galen of Virginia, Inc., 525 U.S. 249, 119

Eee Ff: | Pritt re ee 23

Roberts v. Madigan, 921 F.2d 1047 (10th Cir.

BOOED ev vccvsnecedtcsdndseveevetwebiten 10

Rosenberger v. Rector and Visitors of the Univ. of

Va., 515 U.S. 819, 115 S. Ct. 2510 (1995) ..... 23, 24

Rowan v. U.S. Post Office Department, 397 U.S. 728,

SOS. CR. PAGS CEP FED occ stint eet eerie is Fo 24

Sands v. Morongo Unified Sch. Dist., 53 Cal. 3d 863,

809 P.2d 809, 281 Cal. Rptr. 34 (1991), cert.

denied 505 U.S. 1218, 112 S. Ct. 3026 (1992)

sa he's NCES 6 bu 0 NSE A DERN OC eeeed bed euweees 17

School Dist. of Abington v. Schempp, 374 U.S. 203,

SF Ge: SCR os cbs vabcbawaueen eens 10

Singleton v. Wulff, 428 U.S. 106, 96 S. Ct. 2868

CIPI 5 ois cee ie seie VSO Cea 14

Spencer v. Kemna, 523 U.S. 1, 118 S. Ct. 978

CIDE) hisses HEP ATA 1A RR 14

xi

Cited Authorities -

Page

Stein v. Plainwell Community Sch., 822 F.2d 1406

eer Tee TEE ere 9

Stone v. Graham, 449 U.S. 39, 101 S. Ct. 192 (1980)

5 bi Sohn b A SUSES 004 45 50 5 STEMI Aa 16 ~

Tinker v. Des Moines Indep. Community Sch. Dist.,

393 U.S. 503, 89 S. Ct. 733 (1969) .......... 20, 22

Wallace v. Jaffree, 472 U.S. 38, 105 S. Ct. 2479

ES os Kewanee kebess cabeee ded redeveds 16

Widmar v. Vincent, 454 U.S. 263 (1981) ......... 24

Wilson v. Layne, 526 U.S 603, 119 S. Ct. 1692

Li eee ELVES STEP ER TE TE PERE EE 15, 17, 18, 19

Wood vy. Strickland, 420 U.S. weer 95 S. Ct. 992

St) OAS PPP a A Ee gS bee ee on ae pe 19

United States Constitution:

Pe eis occas ekc baa sase en passim

EAP ERIS ra ere amar sare anne E 18

Statutes:

California Education Code section 48907 ........ 21

Be ee WEE ok eR pean eGucbseesas ii, 9, 15, 26

xii

Cited Authorities

Other Authorities:

California Constitution Article I, Section 4 ...

California Constitution Article IX, Section 8 .

California Constitution Article XVI, Section 5

1

Respondents Oroville Union High School District; Barry

Kayrell, individually and as Superintendent of the Oroville

Union High School District; Larry Payne, individually and

as Principal of Oroville Union High School; Jeff Plotnick,

individually and as Vice-Principal of Oroville Union High

School; David Bruce, Roy Fisher, Kenneth Harlan, Susan

Neben, Lillaine Speese, as members of the governing board

of Oroville Union High School District (collectively

“Respondents”) respectfully request that the petition for writ

of certiorari be dénied. Petitioners would have this Court set

aside well-established precedent involving mootness,

standing, immunities, and the First Amendment’s Free

Speech and Establishment Clauses as applied in the nation’s

public schools.

RELEVANT CONSTITUTIONAL PROVISIONS

The relevant constitutional provisions are the Free

Speech and Establishment Clauses of the United States

Constitution, First Amendment, which state in pertinent part:

“Congress shall make no law respecting an establishment of

religion ... or abridging the freedom of speech . . .” Also

relevant are the California Constitution, Article I, Section

4; Article XVI, Section 5; and Article IX, Section 8, which

state in pertinent part as follows:

Article I, Section 4:

Free exercise and enjoyment of religion without

discrimination or preference are guaranteed, . . .

The Legislature shall make no law respecting an

establishment of religion.

Article XVI, Section 5:

Neither the Legislature, nor any . . . school district

... Shall ever ... grant anything to or in aid of

any religious sect, church, creed, or sectarian

purpose...

Article [X, Section 8:

No public money shall ever be appropriated for

the support of any sectarian or denominational

school, or any school not under the exclusive

control of the officers of the public schools; nor

shall any sectarian or denominational doctrine be

taught, or instruction thereon be permitted,

directly or indirectly, in any of the common

schools of this State.

STATEMENT OF THE CASE

A. Introduction.

This matter involves Petitioners’ attempt to revive

money damage claims against Respondents’ school board

members, and School Officials who met their obligations to

maintain decorous and lawful public high school graduation

ceremonies. Acting with advice of legal counsel, the School

Officials disapproved sectarian and proselytizing graduation

speech in ceremonies over which the School District retained

plenary control. Co-valedictorian and Petitioner Chris

Niemeyer admittedly proposed to testify, witness, or preach

from the public podium to a 1998 California public high

school graduation audience. The method used in his proposed

graduation expression was repetitious “we messages”

3

directed to the entire audience, e.g., “[w]e are all God’s

children, through Jesus Christ’s death, when we accept

His free love and saving grace in our lives...,” or

“{a]s individuals, we have a choice of whether to choose

His perfect will in our lives or our own futile plans”; and he

concluded with a call to action addressed to the entire

audience that “I encourage you to accept God’s love and

grace. We must yield to God our lives and let Him direct

our future paths. For with God, you will find eternal

happiness and absolute success in all that you do.”

Supplemental Excerpt of Record (hereinafter “SER”)

at 188-189; App. G at G1-G3.' This religious testimonial

would have occurred despite the objections of at least the

1998 Oroville High School co-valedictorian and her family.

B. Procedural History.

The Petitioners’ description of the timing and procedural

results of the court decisions below is accurate. Petition at

5-8. However, the Petition omits certain key substantive

grounds for the rulings of the trial and appellate courts

germane to Petitioners’ “questions presented.” First, the trial

court in dismissing all damage claims on the basis of

qualified immunity set the “contours of the right” pursuant

to the First Amendment and Hazelwood Sch. Dist. v.

Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562 (1988)

(“Hazelwood”), App. D at D2-D3. The trial court next held

that “[iJn this case, defendants’ actions were reasonably

1. All such references are to the School District’s Statement

of Undisputed Facts (“Undisputed Facts”) as set forth in the

Supplemental Excerpts of Record (“SER”) before the appellate court,

unless otherwise noted. The Petitioners’ Appendix herein is referred

to as “App.”

4

related to the legitimate pedagogical concern of conducting

a graduation ceremony which did not offend or intrude upon

the religious sensibilities of other students.” App. D at D4.

The trial court ruled that Petitioners had failed to demonstrate

a “clearly established” right pursuant to the First

Amendment. App. D at D4. When subsequently ruling upon

the equitable claims, the trial court held that the School

District’s tendered justification sufficed under Hazelwood,

484 U.S. 260, App. C at C17. The trial court in that

conclusion also noted that “plaintiffs’ proposed speech would

convey as sectarian a message as the prayer in Doe v. Santa

Fe Indep. Sch. Dist., 168 F.3d 806 (Sth Cir. Tex. 1999), and

thus permitting its delivery would equally implicate the

Establishment Clause.” App. C at C17-C18.?

Second, due to the procedural lack of standing and

mootness of claimed equitable relief, the appellate court.

primarily framed its substantive analysis upon the claimed

money damages and immunity issues. Cole v. Oroville Union

High Sch. Dist., 228 F.3d 1092, 1101-1104 (9th Cir. 2000)

(“Cole”), App. A at Al4-A23. The Ninth Circuit panel

carefully applied this Court’s public school precedent in Lee

v. Weisman, 505 U.S. 577, 112 S. Ct. 2649 (1992)

(school district invitation to clergy to deliver graduation

invocation violates Establishment Clause) (“Lee”), and Santa

Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 120 S. Ct. 2266

(2000) (school district policy allowing students to deliver

2. With respect to Jason Niemeyer, both parties stipulated it

was sufficient for the trial court to rule on the basis that: “I have a

pleading, which apparently everybody agrees Jason proposes a

sectarian speech, something along the lines of his brother’s proposed

speech.” SER at 236-238; RT of May 27, 1999, p. 23, lines 2-12,

App. C at C12.

5

nonsectarian and nonproselytizing invocation or statement

to solemnize football games violates Establishment Clause)

(“Santa Fe Indep. Sch. Dist.”). Cole, 228 F.3d at 1101-1104,

App. A at Al4-A23. The appellate court concluded that the

“District officials acted reasonably to avoid violating the

Establishment Clause,” to affirm immunity. Cole, 228 F.3d

at 1105, App. A at A23. The Petitioners did not bring any

claimed error to the Ninth Circuit’s attention by way of

petition for rehearing or rehearing en banc.

C. Brief Statement of Facts.

The Petitioners’ factual description omits key facts.

Petition at 3-5. The Petitioners’ Statement of the Case

unfortunately ignores the real life religious conflict

confronting the School Officials and misstates the undisputed

facts before the trial and appellate courts. Petition at 3-5.

The trial court relied upon undisputed facts and very briefly

summarized facts taken from the statements of undisputed

facts filed by the parties. SER at 240-242, App. C at C1-CS5.

The appellate court in its de novo review did the same. Cole,

228 F.3d at 1096-1097, App. A at A4-A7. The trial court held

as a factual matter the School District retained and exercised

the right to approve all speech proposed to

be delivered at Oroville High School. SER at 240-242,

App. C at C1-CS. The appellate court determined the School

District retained plenary authority over the graduation

ceremony to include student speech. Cole, 228 F.3d at 1103,

App. A at A19. The School District will very briefly set forth

certain other key undisputed facts regarding School District

graduation ceremonies.’

3. The School District’s entire statement of undisputed facts

is set forth as Appendix J to the Petition.

6

The Principal at each high school within the School

District has primary responsibility for supervising all aspects

of the graduation ceremonies. SER at 23, Undisputed Facts

#24, App. J at J10. Students and their parents or guardians

sign a behavior contract to attend any OUHSD graduation.

SER at 5, Undisputed Facts #25, App. J at J10. The Oroville

High School graduation is held upon School District-owned

property and public funds are expended on the ceremony.

SER at 5, Undisputed Facts #27, App. J at J10. Most speeches

during Oroville High School graduations have been

traditionally delivered by students. Prior to approximately

1985, the senior class selected the student speakers for the

Oroville High School graduation who spoke without

administrative review. Due to concerns about the quality of

speeches and crowd decorum, the then-principal in

approximately 1985 instituted the current system by which

all speech at the Oroville High School graduation ceremony

is reviewed by the high school secretary; retyped; then

reviewed and approved by the vice principal or principal.

The Senior Class Advisors and Senior English Instructor

first assist the speakers in drafting their remarks. SER at 6,

26-28, Undisputed Facts #7-8, 36-46, 51-54, App. J at

J3-J4, J15-J17, J19-J21. In 1998, senior class advisors and

teachers Jason Becker and Kim Koslin-Scott told student

speakers that the speeches had to be nondenominational and

Koslin-Scott described “nondenominationa!” as inclusive of

the religious beliefs of everyone. Koslin-Scott gave an

example of a person not being able to practice Buddhist

beliefs in a speech and intended for the speeches to be

nonoffensive to the entire audience. SER at 26, Undisputed

Facts #37. Speech is placed in the “graduation book,” a

compilation of all approved speeches placed at the podium

in a binder. SER at 5, Undisputed Facts #28, App. J at

J11-J12.

7

When Chris Niemeyer (and Ferrin Cole)* were chosen

to present, the 1998 Co-Valedictorian Delisa Freistadt was

- concerned that they might try to use the graduation ceremony

as an opportunity to recruit others to their religious views.

Freistadt is Jewish and her concerns were based on the fact

that Niemeyer (and Cole) were leaders in a student religious

club that she perceived was trying to proselytize students by

handing out free hot cocoa on cold mornings and pizza at

lunch with religious pamphlets and bibles. SER at 27,

Undisputed Facts #47, App. J at J17-J18. Freistadt shared

her concerns with her father, Dr. Hans Freistadt, who sent a

letter objecting to reference to Jesus during graduation on

her behalf to Payne dated May 4, 1998. SER at 27,

Undisputed Facts #48, App. J at J18. Both Payne and

Superintendent Barry Kayrell specifically considered

Freistadt’s letter in their decision-making process.

SER at 27, Undisputed Facts #49, App. J at J19.

Chris Niemeyer’s proposed speech is set forth as

Appendix G to the Petition. Although Chris Niemeyer was

aware that School District Senior Class Faculty Advisors

Jason Becker, Kim Koslin-Scott, and Senior English teacher

Mark McKinnon had expressed a desire to assist him with

his speech, SER at 29, Undisputed Facts #66, App. J at J24,

Chris Niemeyer intentionally did not share his proposed

speech with them or Delisa Freistadt because of the content

of his speech and because he knew that they did not share

the same convictions that he does, as far as faith. SER at 29,

Undisputed Facts #67, #69, App. J at J24. The fact that there

would be a mixed audience of believers and nonbelievers

4. Petitioners do not raise any claim regarding Ferrin Cole’s

proposed invocation and Mr. Cole is not a party to this Petition.

Petition at 5, n.4. The School District no longer permits any

invocations. SER at 191.

during graduation did not have a huge impact on Chris

Niemeyer while he was drafting his speech because of his

“convictions from God to share the speech He had given

me.” SER at 30, App. J at J25. The purpose of Chris

Niemeyer’s speech was to praise God and the speech

“glorifies Him through the words.” SER at 30, Undisputed

Facts #73, App. J at J25. Chris Niemeyer agreed that

statements such as “we are here to pattern our lives after

Jesus’s example” are a form of “testimony” and “witnessing”

as described by Chris Niemeyer. SER at 30, Undisputed Facts

#77, App. J at J26. Chris Niemeyer’s draft speech(es) contain

many Christian concepts which are uniquely Christian and

which are not universally held in all religions. SER at 30,

Undisputed Facts #78, App. J at J26. If as a result of Chris

Niemeyer’s speech(es) someone found Jesus or God, Chris

Niemeyer believes that would have been a “good result.”

SER at 39, Undisputed Facts #79, App. J at J26. Chris

Niemeyer agrees that the speech could be “preaching” if

“preaching” is defined as “testifying” or “witnessing,”

because “[t}hat’s witnessing, witnessing of what God has

done in my life, what He can do for others.” SER at 31,

Undisputed Facts #84, App. J at J28.

The proposed religious expression was not approved

by the School Officials, after a series of meetings with

Chris Niemeyer, and advice of legal counsel. SER at 31-34,

Undisputed Facts #85-106, App. J at J28-J35. Chris

Niemeyer's speech, as Principal Larry Payne saw it, would

have attempted to violate the standards of the United States

Constitution, the separation of church and state; it was

religious in nature throughout its theme, it was not directed

in the spirit of the graduation, instead it was an attempt to

convert people to Niemeyer’s way of thinking as far as church

was concerned. SER at 46, App. J at J31. Freistadt ultimately

9

was relieved that the trial court did not force her to listen to

Chris Niemeyer’s speech. Freistadt believes she should

have been able to graduate as co-valedictorian of her class

without being subjected to offensive religious proselytizing.

SER at 34, Undisputed Facts #110, App. J at J36.

REASONS FOR DENYING THE WRIT

A. There Is No Conflict Among the Circuits Regarding

Graduation Ceremonies.

Petitioners attempt to create a conflict between the Ninth

Circuit decision in Cole and the decision of the Eleventh

Circuit in Chandler v. Siegelman, 230 F.3d 1313 (11th Cir.

2000) (“Chandler IT’). Petition at 10-14. However, the

federal circuits have rejected student sectarian prayer and/

or proselytizing speech in the specific context of public high

school graduation ceremonies.’ Similar restrictions in public

5. See Stein v. Plainwell Community Sch., 822 F.2d 1406

(6th Cir. 1987) (Sixth Circuit pre-Lee upheld nonsectarian or

nondenominationa! public high school graduation invocations, but

concluded the specific language therein was expressly Christian and

unconstitutional); Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d

963 (Sth Cir. 1992) (“Jones IT’) (board policy may allow seniors to

choose student volunteers to deliver only nonsectarian,

nondenominational prayer); Doe v. Santa Fe Indep. Sch. Dist., 168

F.3d 806 (Sth Cir. 1999), affirmed on other grounds, 530 U.S. 290,

120 S. Ct. 2266 (2000) (reiterates no sectarian or proselytizing

speech during graduation ceremonies); ACLU v. Black Horse

Pike Reg'l. Bd. of Educ., 84 F.3d 1471 (3d Cir. 1996) (senior

class determining whether to include prayer not permissible)

(“Black Horse Pike”); Guidry v. Broussard, 897 F.2d 181 (Sth Cir.

1990) (summary judgment in favor of a school board upheld in a

42 U.S.C. section 1983 when principal had allegedly censored the

religious valedictorian address by the student).

10

o

schools apply outside the graduation ceremony.° As recently

noted by the Sixth Circuit in Coles, 171 F.3d at 377:

“The Supreme Court’s Establishment Clause jurisprudence

has been remarkably consistent in sustaining virtually every

challenge to government-sponsored religious expression or

involvement in the public schools.” The Ninth Circuit’s Cole

decision is in accord with this solid line of circuit case law.

Nor is there a conflict between the Ninth Circuit decision

in Cole and the subsequent Eleventh Circuit decision in

Chandler IT, or Chandler v. James, 180 F.3d 1254 (11th Cir.

1999) (“Chandler I’), as reinstated in Chendler II. Cole

involves a California public school graduation ceremony in

which the school district retained plenary control over the

ceremony, to include faculty advisers working with student

6. See Collins v. Chandler Unified Sch. Dist., 644 F.2d 759

(9th Cir. 1981), cert. denied 454 U.S. 863, 102 S. Ct. 322 (1981)

(“Collins”) (presentation by students of prayer and bible verses at

the opening of student assembly violates the Establishment Clause);

Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517 (9th Cir. 1994)

(school district restriction on high school teacher’s discussions with

students about religion during school day and attempts to teach

creationism held valid district regulation of curriculum); Coles by

Coles v. Cleveland Bd. of Educ., 171 F.3d 369 (6th Cir. 1999),

rehearing and en banc review denied, 183 F.3d 538 (school board

may not begin meetings with invocation); Doe v. Duncanville Indep.

Sch. Dist., 70 F.3d 402 (Sth Cir. 1995) (district employees and

students participating in student prayers during basketball practices

and games impermissible); Roberts v. Madigan, 921 F.2d 1047

(10th Cir. 1990) (school district order requiring fifth grade teacher

refrain from reading bible in presence of students and remove

religious books made available to students from classroom library

held permissible); Jager v. Douglas County Sch. Dist., 862 F.2d

_ $24 (11th Cir. 1989) (district practice of opening football games

with prayer unconstitutional).

11

speakers and prior administrative approval of all speech.

Cole, 228 F.3d at 1096-1097, App. A at A4-A6, App. J at

J10-J21.’ In both Chandler I and Chandler II the Eleventh

Circuit vacated portions of what it considered an overbroad

permanent injunction issued by the trial court:

{[W]hich assumed that virtually any religious

speech in schools is attributable to the State.

While the district court recognized that a student

must be allowed to pray silently while in school,

or even discuss his religious beliefs quietly with

others, it enjoined the school district from

permitting any prayer in a public context at any

school function. We held that this injunction was

overbroad to the extent that it equated all student

religious speech in any public context at school

with State speech. In so doing, it eliminated any

possibility of private student religious speech

under any circumstances other than silently or

behind closed doors. This the Constitution neither

requires nor permits. Chandler II, 230 F.3d at

1316 (footnote omitted) (emphasis omitted).

7. This Court has itself recognized that educators retain a

significant degree of control over all aspects of a public high school

graduation ceremony stating that: “[a]t a high school graduation,

teachers and principals must and do retain a high degree of control

over the precise contents of the program, the speeches, the timing,

the movements, the dress, and the decorum of the students.”

Lee, 505 U.S. at 597 (emphasis added). Other federal circuits have

emphatically held a public high school graduation ceremony is a

“nonpublic” forum. Black Horse Pike, 84 F.3d at 1478; Doe v. Santa

Fe Indep. Sch. Dist., 168 F.3d at 822, affirmed on other grounds.

12

The Eleventh Circuit in Chandler II repetitiously

recognized this Court’s holding in Santa Fe Indep. Sch. Dist.

that State-sponsored coercive speech is forbidden by the

Constitution, and so in distinguishing private speech did not

rule upon official public school-sponsored activities such as

a graduation ceremony.® In Chandler I, the Eleventh Circuit

did recognize that: “On the other hand, even genuinely

student-initiated religious speech may constitute state action

if the State participates in or supervises the speech.”

Chandler I, 180 F.3d at 1264 (emphasis added and omitted)

(citation omitted). The Eleventh Circuit concluded that:

Furthermore, a student’s right to express his

personal religious beliefs does not extend to using

the machinery of the state as a vehicle for

8. The Eleventh Circuit stated, “Santa Fe is limited to the issue

of school-sponsored student speakers over public address systems

at official school events. The activities prohibited by the Permanent

Injunction entered in Chandler I are far more extensive.” Chandler

IT, 230 F.3d at 1315, n. 2. “Because the prayers [in Santa Fe] bear

the imprint of the State, they cannot be characterized as ‘private’

speech protected by the Free Exercise and Free Speech Clauses.”

Id. at 1315.

The Court [in Santa Fe] held: [J] The delivery of such

a message — over the school’s public address system,

by a speaker representing the student body, under the

supervision of school faculty, and pursuant to a school

policy that explicitly and implicitly encourages public

prayer — is not properly characterized as “private”

speech. [J] Since the religious speech produced by Santa

Fe’s policy is sponsored by and, therefore, attributable

to the school, it constitutes an unconstitutional

endorsement of religion by the State.

Id. at 1315-16 (citations omitted) (emphasis omitted).

13

converting his audience. The Constitution

requires that schools permit religious expression,

not religious proselytizing. “The principle that

government may accommodate the free exercise

of religion does not supersede the fundamental

limitations imposed by the Establishment

Ciause.” Proselytizing speech is inherently

coercive and, the Constitution prohibits it from

the government's pulpit. Chandler I, 180 F.3d at

1265 (citations omitted) (emphasis added).

Thus, the Eleventh Circuit in Chandler I and Chandler IT

repetitiously recognized the distinction between genuinely

private student speech, and speech sponsored by the school

during official school activities. The Eleventh Circuit in

Chandler I itself recognized the Constitution prohibits

proselytizing student speech from the government’s pulpit.

Whatever the merits, or breadth of Chandler I and II, neither

decision extends to proselytizing speech during public high

school graduation ceremonies over which a public school district

retains plenary control. There is no split among the circuits,

or between the Eleventh and Ninth Circuits in Chandler and

Cole regarding graduation ceremonies.

B. Equitable Claims Remain Moot and No Petitioner

Has Equitable Relief Standing.

Due to the clear-cut mootness and lack of standing to

pursue equitable remedies, the only conceivable issues

presented by this matter involve damage claims and

immunities. The mootness and standing rulings of the trial

and appellate courts were in accord with this Court’s and

14

previous Ninth Circuit precedent.’ Los Angeles v. Lyons, 461

U.S. 95, 101-102, 103 S. Ct. 1660 (1983); Friends of the

Earth Inc. v. Laidlaw Envtl. Servs. (TOL) Inc., 528 U.S. 167,

120 S. Ct. 693, 703, 704 (2000); Spencer v. Kemna, 523 U.S.

1, 17, 118 S. Ct. 978 (1998); Singleton v. Wulff, 428 U.S.

106, 112, 96 S. Ct. 2868 (1976); Powers v. Ohio, 499 U.S.

400, 411, 111 S. Ct. 1364 (1991); Bigelow v. Virginia, 421

U.S. 809, 816-817, 95 S. Ct. 2222 (1975). It has now been

almost three years since Chris Niemeyer, and two years since

Jason Niemeyer, graduated from Oroville High School. Each

has long ago lost any personal stake in equitable relief

pursuant to existing precedent. Moreover, it is entirely

speculative whether any of the underclass students who seek

now to join the case will even attend or speak at a graduation

ceremony in the School District.

Petitioners do not squarely offer a “question presented”

which raises such a momentous change in mootness and

standing law, but only by footnote obliquely invite this Court

to consider declaratory or injunctive relief and grant standing

‘On jus tertii status to a variety of Petitioners. Petition at 1,

n.1; 7, n.5. Consideration of these equitable or standing issues

now would open the federal courthouse doors for the nation’s

high school alumni to maintain equitable relief claims, or

9. See B.C. by and through Powers v. Plumas Unified Sch. Dist.,

192 F.3d 1260 (9th Cir. 1999), amended by 1999 WL 958926

(hereinafter “B.C.”); Doe v. Madison Sch. Dist. No. 321, 147 F.3d

832 (9th Cir. 1998), vacated and remanded, 177 F.3d 789 (9th Cir.

1999) opinion withdrawn, review, or rehearing granted, 1999 U.S.

App. LEXIS 5051 (9th Cir. 1999); Ceniceros by & through Risser v.

Board of Trustees, 106 F. 3d 878, 879, n.1 (9th Cir. 1997); Harris v.

Joint Sch. Dist. No. 241, 41 F.3d 447 (9th Cir. 1994), cert. granted,

vacated, and remanded, 515 U.S. 1154, 115 S. Ct. 2604 (1995),

on remand, 62 F.3d 1233.

15

assert jus tertii to maintain causes of action on behalf of

younger students, for years after graduation from high school.

This procedural invitation by Petitioners could prove more

troubling for the nation’s schools than perhaps even the

substantive issues proferred to this Court.

C. There Is No Basis to Revive Damage Claims in this

Matter.

The School District respectfully asserts the trial and

appellate courts properly ruled the School Officials and

School District board members named as individuals had

qualified immunity to any 42 U.S.C. § 1983 damage claim.

The first question is whether the plaintiff alleged facts which,

if true, would constitute a deprivation of a constitutional right

at all. Cole, 228 F.3d at 1101, App. A at A15; see Harlow v.

Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727 (1982)

(“Harlow”); County of Sacramento v. Lewis, 523 U.S. 833,

118 S. Ct. 1708, 1714 (1998) (“County of Sacramento”);

Wilson v. Layne, 526 U.S 603, 609, 119 S. Ct. 1692 (1999)

(“Wilson”); B.C., 192 F.3d at 1265, 1268. Second, unless

there is a violation of a “clearly established” right which any

reasonable person would have known at that time, a school

official has qualified immunity and cannot be

held accountable for damages. Cole, 228 F.3d at 1101,

App. A at A15; see Wilson, 526 U.S. 603; Brewster v. Board

of Educ., 149 F.3d 971, 976-977 (9th Cir. 1998) (“Brewster”);

B.C., 192 F.3d at 1268; McDade v. West, 223 F.3d 1135,

1142 (9th Cir. 2000).

16

1. There Was No Potential Deprivation of

Constitutional Rights in These Circumstances.

Pursuant to the first prong of the applicable County of

Sacramento test, the School District respectfully asserts this

matter could not involve a deprivation of a constitutional

right at all, within the First Amendment “contours of the

right.” County of Sacramento, 523 U.S. 833 at 841, n.5. This

Court has consistently expressed the need for particular

Establishment Clause vigilance in K-12 public schools.

Edwards v. Aguillard, 482 U.S. 578, 583-84, 107 S. Ct. 2573

(1987) (“Edwards”); Lee, 505 U.S. at 592. This Court, in

two bedrock decisions, held that State-sponsored prayer

during the school day impermissibly violates the

Establishment Clause of the First Amendment. School Dist.

of Abington v. Schempp, 374 U.S. 203, 83 S. Ct. 1560 (1963)

(“Abington”); Engel v. Vitale, 370 U.S. 421, 82 S. Ct. 1261

(1962) (“Engel”). Following Abington and Engel, this Court

has consistently disallowed other forms of public religious

expression in the context of public schools. Stone v. Graham,

449 U.S. 39, 101 S. Ct. 192 (1980) (posting of the Ten

Commandments on classroom wall impermissible); Wallace

v. Jaffree, 472 U.S. 38, 105 S. Ct. 2479 (1985) (moments of

silence for meditation or voluntary prayer during class

impermissible); Edwards, 482 U.S. 578 (law requiring

teaching of creationism in public schools impermissible). In

Lee, 505 U.S. at 587, this Court declined the opportunity to

abandon this thirty years of precedent, and the basic tripartite

test set forth in Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct.

2105 (1971) (“Lemon”), to reaffirm reliance upon precedent

when reviewing public school Establishment Clause issues.

Lee, 505 U.S. at 587. This Court specifically noted in Lee

that “our decisions in Engel v. Vitale ... and Abington v.

Schempp ... require us to distinguish the public school

17

context [from other civil ceremonial occasions].” Jd. at 597

(citations omitted). Just last term this Court reaffirmed these

bedrock public school principles in Santa Fe Indep.

Sch. Dist.

All controlling precedent from this Court (and the

circuits) has disallowed religious prayer, or similar forms of

religious speech or exercises, in official public school-

sponsored activities.'® The Ninth Circuit decision in Cole

carefully applied this Court’s decisions in Lee, Santa Fe

Indep. Sch. Dist., and both the “endorsement” and “coercion”

variations of the Lemon test to affirm Respondents’ qualified

immunity. Cole, 228 F.3d at 1101-1105, App. A at

A14-A23. There is no reason for this Court to take this

matter now.

2. There Was No “Clearly Established” Right

During the Time Period At Issue.

The second prong of the County of Sacramento test

provides the ultimate ground for denying the Petition.

In this case, there was no established constitutional right of

which the individually named defendants should have known

at that time. In Wilson, 526 U.S 603, this Court held that

10. The School Officials also had a compelling State interest

in compliance with the California Constitution, Article I, Section 4;

Article XVI, Section 5; and Article IX, Section 8 during public high

school graduation ceremonies. Sands v. Morongo Unified Sch. Dist.,

53 Cal. 3d 863, 809 P.2d 809, 281 Cal. Rptr. 34 (1991), cert. denied

505 U.S. 1218, 112 S. Ct. 3026 (1992) (no religious invocations

delivered by clergy during graduation ceremonies); Bennett v.

Livermore Unified Sch. Dist., 193 Cal. App. 3d 1012, 238 Cal. Rptr.

819 (1987) (no religious invocations by students during graduation

ceremonies).

18

although the plaintiff's rights under the Fourth Amendment

were violated by federal law enforcement officials, the

officers were nonetheless entitled to the defense of qualified

immunity since the state of the law was not clearly

established at the time the search took place. Wilson, 526

U.S. at 605-606. This Court in so ruling followed its previous

reasoning in Harlow, and also looked to the definition of

“clearly established” articulated in Anderson v. Creighton,

483 U.S. 635, 107 S. Ct. 3034 (1987) (“Anderson”); Wilson,

526 U.S. at 614. In Anderson, this Court held “clearly

established” for the purposes of qualified immunity means

that:

The contours of the right must be sufficiently clear

that a reasonable official would understand that

what he is doing violates that right. This is not to

say that an official action is protected by qualified

immunity unless the very action in question has

previously been held unlawful, but it is to say that

in light of pre-existing law the unlawfulness must

be apparent. Anderson, 483 U.S. at 640 (citations

omitted).!!

11. See Brewster, 149 F.3d at 976-980 (“The legal right at issue

is not the generic right to free speech”); B.C., 192 F.3d at 1265,

1288 (claimed constitutional deprivation must be apparent at the

time of the alleged deprivation to be actionable); Baxter by Baxter

v. Vigo County Sch. Corp., 26 F.3d 728, 736-737 (7th Cir. 1994)

(“The plaintiff bears the burden of showing that the constitutional

right allegedly violated was clearly established before the defendant

acted or failed to act”); Maciariello v. Sumner, 973 F.2d 295, 298

(4th Cir. 1992) (“[government] [o]fficials are not liable for bad

guesses in gray areas”).

19

The School Officials’ decisions were in compliance with

the First Amendment Free Speech Clause’s Hazelwood

standards, and were dictated by the line of federal and state

Establishment Clause decisions barring State-sponsored

religious expression in school. There was no U.S. Supreme

Court or federal circuit case law setting forth any right to

deliver a sectarian or proselytizing religious expression in a

graduation ceremony. If this is arguably a case of first

impression involving proposed religious expression in

educator-approved student graduation speech, there could

be no official knowledge of a “clearly established” federal

constitutional right at that time sufficient to abrogate the

qualified immunity. Harlow, 457 U.S. 800; County of

Sacramento, 523 U.S. 833; Wilson, 526 U.S 603; Anderson,

483 U.S. 635; see Brewster, 149 F.3d 971; B.C., 192 F.3d at

1268. In the context of immunity to damage claims, the

question is not whether the Establishment Clause required

the action, it is whether the School Officials with advice of

counsel reasonably believed at that time their conduct was

lawful. As this Court stated in Wood v. Strickland, 420 U.S.

308, 319-320, 95 S. Ct. 992 (1975): “the imposition of

monetary costs for mistakes which were not unreasonable

in the light of all the circumstances would undoubtedly deter

even the most conscientious school decisionmaker from

exercising his judgment independently, forcefully, and in a

manner best serving the long-term interest of the school and

the students.” Since there can be no damages due Petitioners,

there is no reason for this Court to grant review to render

what would truly be an advisory opinion.

20

D. The Contours of the Right for First Amendment Free

Speech Analysis Must Include Hazelwood, Which

Permits Administrative Limitations on Speech.

Petitioners attempt to side-step Hazelwood in their First

Amendment “questions presented.” Even assuming arguendo

this Court found the School Officials’ decisions were not

required by the Establishment Clause as sought by the

Petitioners, and that the decisions were not reasonable

“good faith” attempts to comply with the Establishment

Clause as found by the appellate court, those findings would

not reverse the trial court’s ruling that the School Officials

were immune pursuant to Free Speech Clause and Hazelwood

standards. Petitioners utterly fail to recognize their “questions

presented” to this Court must include the Hazelwood

standards for the purpose of Free Speech Clause analysis.

Students’ First Amendment rights to free speech are

protected to a more limited degree than adults in public

schools. Tinker v. Des Moines Indep. Community Sch. Dist.,

393 U.S. 503, 89 S. Ct. 733 (1969) (“Tinker”). Petitioners

below grounded their Free Speech claims upon Tinker.

However, this Court in Tinker noted that case did “not

concern speech or action that intrudes upon the work of the

schools or the rights of other students.” Id. at 508 (emphasis

added). Tinker recognized the special nature of public schools

gives rise to “the need for affirming the comprehensive

authority of the States and of school officials, consistent with

fundamental constitutional safeguards, to prescribe and

control conduct in the schools.” Jd. at 507; cf. Bethel Sch.

Dist. v. Fraser, 478 U.S. 675, 106 S.Ct. 3159 (1986)

(“Bethel”) (sanctions permissible for lewd and indecent

student speech). This Court next differentiated between

21

student political protest and student expression in school-

sponsored activities, holding that educators do not violate

the First Amendment when exercising control over style and

content of student speech in faculty-supervised activities so

long as the educator’s actions are “reasonably related to

legitimate pedagogical concerns.” Hazelwood, 484 U.S. at

273. Speech sponsored by the school is thus subject to

“greater control” by school authorities than speech not so

sponsored. /d. at 272-73." Thus, one affirmative defense of

the Respondents below was that the School Officials’

decisions were permissible pursuant to Hazelwood, 484

U.S. 273.

12. Petitioners attempt to buttress their First Amendment

“questions presented” by citing School District policy 5145.2

regarding student expression. Petition at 2-4. Such a policy is

required by California Education Code section 48907 and concerns

student expression in official publications. See id. California

Education Code section 48907 has been construed by a state appellate

court to allow the “prior restraint” of student expression in a student-

produced film. Lopez v. Tulare Joint Union High Sch. Dist., 34 Cal.

App. 4th 1302, 40 Cal. Rptr. 2d 762 (1995) (“Lopez”). The state

appellate court in Lopez concluded that “official school publications”

in California fall into the limited forum category, and that the prior

restraint could be justified by advancing a “compelling state interest.”

Id. at 1328-29. Further, a state appellate court in Perumal v.

Saddleback Valley Unified Sch. Dist., 198 Cal. App. 3d 64, 243 Cal.

Rptr. 545 (1988) (“Perumal”), rejected the application of California

Education Code section 48907 and “prior restraint” principles to

the school district’s prohibition of the distribution of religious

literature on a “closed forum campus.” Perumal, at 78-82, Crosby,

J., dissenting. The state appellate court in Bennett, 193 Cal. App. 3d

1012, did not address any “prior restraint” issues when ruling student-

delivered religious invocations unconstitutional on the grounds of

the federal and state constitutions. There is no reason to bring these

issues of California statutory and decisional law to this Court.

ee Sree eed A Wr eR eee

22

The Schoo! District’s faculty advisors and School

Officials’ declarations attest to their ongoing duty to

supervise and assist student speakers, as well as reasonable

pedagogic concerns that speech be lawful, appropriate for

the decorum of the graduation ceremony, and nonoffensive

to the entire audience. SER at 36-38, 45-47, 48-50, 52-53,

54-56. The trial court correctly applied controlling First

Amendment Free Speech Clause law and ruled the School

Officials had a reasonable and legitimate pedagogical

concern in not approving the proposed proselytizing

valedictory testimonial in the context of a graduation

celebration. SER at 253-257, App. C at C14-C17. The

Hazelwood standards as applied to graduation ceremonies

would therefore be included within any legal analysis

involving the Free Speech Clause. However, there is no

demonstrable need for this Court to address this settled law,

and the Petition should again be denied.

E. Petitioners’ Proposed Student Right to “Religious

Invitation” Was Not Raised Below and is Contrary

to Public School Precedent.

Petitioners suggest that this Court consider student

“.. preaching and religious invitations as fully protected

First Amendment free speech activity. . ..” Petition at 15.

The First Amendment’s Establishment Clause is applied with

special vigilance in public schools. Lee, 505 U.S. 577.

Petitioners’ suggestion regarding State-sponsored public high

school graduation ceremonies runs contrary to Lee, Santa

Fe Indep. Sch. Dist., and over thirty years of this Court’s

public school precedent. This sweeping legal theory of a

student’s “right to religious invitation” was not raised below

at either the trial or appellate levels, where Petitioners relied

instead upon Tinker and “viewpoint discrimination” theories.

23

Nor was it raised by petition for rehearing or rehearing en

banc. Respondents respectfully assert this Court should not

consider it now. Grupo Mexicano de Desarrollo v. Alliance

Bond Fund, Inc., 527 U.S. 308, 319, 119 S. Ct. 1961 (1999)

(argument was neither raised nor considered below, and

Court declines to consider it); N.C.A.A. v. Smith, 525 U.S.

459, 470, 119 S. Ct. 924 (1999) (Court will not decide in the

first instance issues not decided below); Roberts v. Galen of

Virginia, Inc., 525 U.S. 249, 253-54, 119 S. Ct. 685 (1999)

(Court expressed no opinion as to the factual correctness of

new claims and instead left resolution to courts below

on remand).

The line of cases now relied upon by Petitioners are not

on point to K-12 public schools. Petition at 13-15."° Further,

this line of reasoning ignores the reality that school audiences

are compelled by law, or are at least invited by the State to

activities involving peer pressure to attend, observe, or

participate. Lee, 505 U.S. at 592-593, Santa Fe Indep. Sch.

13. No case involves compulsory attendance or audiences

gathered by the State in K-12 public schools. In Cantwell v.

Connecticut, 310 U.S. 296, 60 S. Ct. 900 (1940), plaintiffs

challenged a Connecticut statute that prohibited the solicitation of

money for religious, charitable, or philanthropic causes without the

approval of the State’s Secretary of the Public Welfare Council. In

Fowler v. Rhode Island, 345 U.S. 67 73 S. Ct. 526 (1953), plaintiffs

were found guilty of violating a city ordinance for addressing a

religious meeting in a public park. Neither Cantwell nor Fowler

were cited to the Ninth Circuit. Rosenberger v. Rector and Visitors

of the Univ. of Va., 515 U.S. 819, 115 S. Ct. 2510 (1995)

(“Rosenberger”), involved religious university students’ access to

university facilities and publications on a nondiscriminatory basis.

Petitioner did raise Rosenberger regarding “viewpoint

discrimination,” but never asserted a high school student's “right to

religious invitation.”

24

Dist., 120 S. Ct. at 2280. Access cases such as Rosenberger,

515 U.S. 819, bear no resemblance to graduates and parents

assembled for a public high school graduation ceremony

under the plenary control of the School District. In both

school contexts , and nonschool contexts,'> this Court has

14. Illinois ex rel. McCollum v. Board of Education, 333 U.S.

203, 68 S. Ct. 461 (1948) (compulsory legal attendance at school creates

captive audience); Bethel, 478 U.S. at 684 (Court noted in pertinent

part that: “the obvious concern on the part of parents, and school

authorities acting in loco parentis, to protect children — especially in

a captive audience — from exposure to sexually explicit, indecent, or

lewd speech”) (emphasis added); Edwards, 482 U.S. at 584 (“[s}tudents

in such institutions [public schools] are impressionable and their

attendance is involuntary”) accord; Muller v. Jefferson Lighthouse Sch.,

98 F.3d 1530, 1541 (7th Cir. 1996) (students as captive audience justifies

predistribution review of student leaflets); Berger v. Rennselaer Cent.

Sch. Corp., 982 F.2d 1160 (1993) (no distribution of Gideon Bibles to

captive audience of students—distinguishing Widmar v. Vincent, 454

U.S. 263 (1981)); Collins, 644 F.2d 759 (invalid policy of prayer at

school assemblies).

15. Hurley v. Irish-American Gay & Lesbian & Bisexual Group,

515 U.S. 557, 115 S. Ct. 2338 (1995) (right to speak encompasses

right not to speak); Lehman v. Shaker Heights, 418 U.S. 298, 94 S. Ct.

2714 (1974) (upholding ban on political advertisements in rapid transit

cars); Frisby v. Schultz, 487 U.S. 474, 487-88, 108 S. Ct. 2495 (1988)

(upholding antipicketing ordinance involving a doctor held “captive”

in his residence due to picketing on a public street outside his home);

Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 771, 772-73, 114

S. Ct. 2516 (1994) (upholding injunction against loud picketing

involving patients held captive by circumstances of medical treatment);

Rowan v. U.S. Post Office Department, 397 U.S. 728, 738, 90 S. Ct.

1484 (1970) (addressee may elect not to receive further material from

a@ particular sender because “no one has a right to press even ‘good’

ideas on an unwilling recipient”); F.C.C. v. Pacifica Found., 438 U.S.

726, 98 S. Ct. 3026 (1978) (upholding administrative order directed

against broadest of scatological monologue).

25

consistently respected the rights of “captive audiences” to

be free from intrusive speech. This Petition presents no

factual or legal grounds for this Court to now consider

Petitioners’ sweeping change in the First Amendment as

applied to the nation’s public schools — particularly when

the matter is procedurally limited to the reimposition of

damage claims against the School Officials for allegedly

violating a preexisting “clearly established” right.

26

CONCLUSION

The Petitioners have asserted no ground in either case

law or policy to grant review. The Graduates’ legal theories,

if adopted, would discard settled public school precedent

from this Court and the federal circuits, thereby sweeping

away decades of substantive and procedural jurisprudence.

Equitable disputes would continue long after an alumni has

graduated from high school. 42 U.S.C. § 1983 damage

litigation would escalate from either supporters or opponents

of student religious testimonials, witnessing, or preaching

in official public school events. Educators caught in the

middle between competing claims would be at constant risk

of personal liability when either exercising permissible

pedagogic judgment pursuant to the Free Speech Clause, or

enforcing the limitations of the Establishment Clause, for

the benefit of all students and parents.

Respectfully submitted,

CHRISTIAN MARK KEINER

Counsel of Record

MICHELLE CANNON

LAURA —ZE BRIGGS

ANNE SHERLOCK

GirarD & VINSON

Attorneys for Respondents

1006 Fourth Street

Eighth Floor

Sacramento, CA 95814-3326

(916) 446-9292