Opposition Brief — Steirer v. Bethlehem Area School District

No. 92-1983]) @UL 13 10%

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In The OFFICE OF THE Chai |

Supreme Court of the United States

October Term, 1992

LYNN ANN STEIRER, a Minor, by BARBARA and THOMAS

STEIRER, as Guardians and in Their Own Right; DAVID

STEPHEN MORALIS, a Minor by THOMAS and BARBARA

MORALIS, as Guardians and in Their Own Right,

Petitioners,

vs.

BETHLEHEM AREA SCHOOL DISTRICT; THOMAS J.

DOLUSIO; ELLEN PAGANO; BARBARA HUTH; JOSEPH

McCARTHY; JOHN SPIRK, SR.; RUTH PROSSER; URIEL

TRUJILLO; LAWRENCE KISSLINGER; LYNN GLANCY;

ROBERT THOMPSON,

Respondents.

On Petition for Writ of Certiorari to the United States Court

of Appeals for the Third Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

MICHAEL I. LEVIN

Counsel of Record

CLECKNER AND FEAREN

Attorneys for Respondents

Willow Grove Plaza

102 York Road, Suite 2000

Willow Grove, Pennsylvania 19090

(215) 657-4528

(800) 3 APPEAL - (800) 5 APPEAL - (800) BRIEF 21

COUNTERSTATEMENT OF QUESTIONS PRESENTED

1. Should this Court accept the parents’ invitation to this

Court to provide an advisory opinion about community service

programs?

2. Does the Third Circuit’s dismissal of the parents’

Thirteenth Amendment claim warrant the granting of the ‘aead

Petition for Writ of Certiorari by this Court?

3. Does the Third Circuit’s dismissal of the parents’ First

Amendment claim warrant the granting of the parents’ Petition for

Writ of Certiorari by this Court?

il

TABLE OF CONTENTS ;

Page

Counterstatement of Questions Presented ............. i

RUA OTORRIOENS io ivsninkcescnvausceeneeeieeeee ii

pi TTT re eee iil

BTC EPEC Cee ee ee ee Eee l

Fe ee ee 2

Constitutional and Statutory Provisions Involved ...... 2

| Pere ere rer ree 2

gf Tee ee eee 5

Repooms For Demy Ge WH oc ccc ccc cncsncens 6

I. The parents’ invitation to this Court to provide an

advisory opinion about community service

programs is inappropriate. ...............605. 6

II. This Court should not grant the parents’ Petition

for Writ of Certiorari because tl.e Third Circuit

dismissed the parents’ Thirteenth Amendment,

claim in accordance with well-established

| MUTT See ee eee 8

Ill. This Court should not grant the parents’ Petition

for Writ of Certiorari because the Third Circuit

dismissed the parents’ First Amendment claim in

accordance with well-established constitutional

POPPE PP Nr EE Or LE Lee PEE 14

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Contents

Page

Ne eg GN kw kv hod ds uKacacacscce 22

TABLE OF CITATIONS

Cases Cited:

Alabama State Federation of Labor v. McAdory, 325 U.S.

caw auc ecace 7

Audet v. Board of Regents, 606 F. Supp. 423 (D.R.I. 1985)

EE 12

Bobilin v. Board of Education, State of Hawaii, 403 F.

Supp. 1095 (D.C. Hawaii 1985) ................. 10, 11,12

Butler v. Perry, 240 U.S.328 (1916) ................. 10

City of Dallas v. Stanglen, 490 U.S. 19 i. 16

Cummingham vy. Virginia School of Cosmetology, 466 F.

NS 12

Federal Communications Com. v. Pacifica Foundation,

OE ee Oo: 7

International Union v. Wisconson Employment Relations

Board, 336 U.S. 245 (1949) ................005... 12

Sellers v. Phillips Barber Shop, 46 N.J. 340, 217 A.2d 121

eae yoy acne ek sakdincunas 12, 13

iv

Contents

Page

Spence v. Washington, 418 U.S. 405 (1974) ............ 16

Texas v. Johnson, 491 U.S. 397 (1989) .............4.5. 16

Tinker v. DesMoine Independent Community School

EWE, FES UB. FORCE POE) sees cb oseenentasenes 17,21

United States v. Booker, 655 F.2d 562 (4th Cir. 1981) .... G

United States v. King, 840 F.2d 1276 (6th Cir. 1987) ..... i)

United States v. Kozminsky, 487 U.S.931(1988) ....... 9

United States v. Lewis, 644 F. Supp. 1391 (W.D. Mich.

PE Ks WERAARNEU TS ENN Ed) DERSLER SEWER SESS Li, 32,33

United States v. O’Brien, 391 U.S. 367 (1967) ......... 16

Watson v. Graves, 909 F.2d 1549 (Sth Cir. 1990) ........ 12,13

West Virginia State Board of Education v. Barnette, 319

Mi TEED Rake hkeeeR Ses sae esew kako ee 17, 18,21

Wooley v. Maryland, 430 U.S.705 (1977) ............. 17,21

United States Constitution Cited:

ee 5,6, 8, 14, 16, 17, 18,21, 22

Thirteenth Amen@mont .......... ccc sec eseees 5,8, 10, 12, 13

Fourteenth Amendment ..................-eeeeeece 5

Vv

Contents

Page

Rule Cited:

United States Supreme Court Rule, Rule 17.1(c) ....... 6.8,14

]

No. 92-1983

In The

Supreme Court of the United States

eh

October Term, 1992

LYNN ANN STEIRER, a Minor, by BARBARA and THOMAS

STEIRER, as Guardians and in Their Own Right; DAVID

STEPHEN MORALIS, a Minor by THOMAS and BARBARA

MORALIS, as Guardians and in Their Own Right,

Petitioners,

VS.

BETHLEHEM AREA SCHOOL DISTRICT; THOMAS J.

DOLUSIO; ELLEN PAGANO; BARBARA HUTH; JOSEPH

McCARTHY; JOHN SPIRK, SR.; RUTH PROSSER: URIEL

TRUJILLO; LAWRENCE KISSLINGER; LYNN GLANCY;

ROBERT THOMPSON,

Pespondents.

On Petition for Writ of Certiorari to the United States Court of

Appeals for the Third Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

ORDERS BELOW

The School District hereby incorporates by reference the

statement of orders below section provided on page | of the

parents’ Petition for Writ of Certiorari as if fully set forth herein.

2

STATEMENT OF JURISDICTION

The School District hereby incorporates by reference the

Statement of Jurisdiction provided on page 1 of the parents’

Petition for Writ of Certiorari as if fully set forth herein.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The School District hereby incorporates by reference the

Statement of Constitutional and Statutory Provisions provided on

page | of the parents’ Petition for Writ of Certiorari as if fully set

forth herein.

COUNTERSTATEMENT OF FACTS

Petitioners are two sets of parents who reside within the

Bethlehem Area School District and their two children,

(collectively referred to hereinafter as the “parents”), who attend

public schools operated by the Bethlehem Area School District.

Respondents are the School District, the members of the Board of

School Directors of the School District, and the School District

Superintendent (collectively referred to hereinafter as the “School

District”), The School District, which is located in Lehigh and

Northampton Counties, serves a population of approximately

100,000 and it enrolls approximately 12,000 students, 3,500 of

which are high school students.

The School District first began considering adoption of the

Community Service Program (hereinafter “the program’) in

March 1989. After thoroughly researching such a program,

conducting numerous meetings, and creating a task force

comprised of school board members, administrators, school

employees, parents and agency representatives, the School District

adopted the program as acomponent of the high school curriculum

of studies on April 30, 1990. The program as adopted requires

students to perform sixty hours of unpaid service to community

organizations or through individual and independent experiential

situations approved by the School District. Students may spread

out their service over the four years of high school, or may perform

it at one time. Students are afforded several options from which to

choose, ranging from tutoring other students to conducting

historical research to working with the handicapped, elderly or

homeless.

Each student must apply for the particular service activity he

or she desires to pursue at a community organization or through an

independent project, or through both. The School District utilizes

separate application forms for students to use for each kind of

service. After the student’s selection is approved, he or she must

perform the service. If problems arise, the service can be changed.

The School District oversees the performance of service. Guidance

counselors conduct small group discussions and community

service coordinators make regular on-site visitation to observe

students personally performing service and to speak with students

concerning their experiences. After the students complete their

service, they must complete an “experience summary form” to

encourage them to reflect upon their experiences. After providing

sixty hours of service and completing the paperwork requirements,

each student receives .5 units of credit toward the school’s credit

requirement for high school graduation. The program is “pass/

fail”; no letter grades are given.

Contrary to the parents’ allegations, the School District is not

forcing the students to endorse or affirm any ideals, beliefs or

standards. The parents admitted in their depositions that the

students are not asked to adopt or express any particular ideals or

beliefs, nor do they have to agree with the program or its

cbjectives.

The program was recommended to advance seventeen

4

educational purposes. For example, the program is designed to

help students learn about the significance of rendering service to

their community, to teach students about community

organizations, to develop intellectual development in academic

learning in such areas as the expression of ideas, reading and

record keeping, and to improve the students’ self-esteem.

With very limited exception, the parents admitted that the

seventeen enumerated objectives were purposes of the program

and proper purposes of public school education. In those limited

instances in which one or more of the parents expressed the opinion

that one of the purposes was not a purpose of the program or was

not a proper purpose of public school education, no evidence was

presented to support that opinion.

The School District introduced affidavits of several experts to

support its position that the program serves legitimate educational

objectives. Ernest Boyer, president of the Carnegie Foundation for

the Advancement of Teaching, and a former United States

Commissioner of Education, advocates community service

because of his long-term commitment to high quality public

education. Commenting upon the School District’s specific

program, Dr. Boyer stated in part, “the rationale for the program is

educationally sound.” Gary Doyle, Deputy Superintendent of the

Bloom‘sield Hill Schools in Bloomfield Hills, Michigan, opined

that the mandatory program in his district promotes the same

purposes sought to be advanced in the Bethlehem Area School

District. Joseph F. Bard, then Acting Commissioner of the

Pennsylvania Department of Education, wrote to the School

District saying, “I congratulate the Bethlehem Area School Board

for their interesting community service and its value to the

educational process.”

The parents filed their Complaint seeking injunctive and

declaratory relief that the School District’s program violates their

5

First, Thirteenth, and Fourteenth Amendment rights under the

United States Constitution. The parents’ Thirteenth Amendment

claim is predicated upon the assertion that the School District's

program constitutes involuntary servitude. The parents’ First and

Fourteenth Amendment claims are predicated upon the assertion

that the School District’s program forces the students to endorse

and affirm ideals, beliefs and standards.

The parties filed cross-motions for summary judgment in the

United States District Court for the Eastern District. On March 30,

1992, the District Court granted the School District’s motion in all

respects. The parents appealed the District Court’s decision to the

United States Court of Appeals, Third Circuit. On March 15, 1993,

the Third Circuit affirmed the decision of the District Court. On

June 15, 1993, the parents filed a Petition for Writ of Certiorari

with this Court.

SUMMARY OF ARGUMENT

The parents contend that this Court should establish

constitutional standards governing mandatory community service

programs. In effect, the parents are asking that this Court issue an

advisory opinion to establish constitutional parameters governing

mandatory community service programs. The law is well-

established that it is not this Court’s function to provide advisory

opinions, and this Court should decline the invitation to provide

such an opinion on the constitutionality of community service

programs.

The parents also contend that the Third Circuit’s decision

conflicts with the plain language of the Thirteenth Amendment and

this Court’s precedents in interpreting the First and Thirteenth

Amendments. The School District submits that the Third Circuit

dismissed the parents’ First and Thirteenth Amendment claims in

accordance with well-established constitutional law. The Third

6

Circuit properly found that the School District’s community

service program does not constitute involuntary servitude and does

not force the students to endorse and affirm ideals, beliefs, and

standards in contravention of their First Amendment rights.

For these reasons, this Court should deny the parents’ Petition

for Writ of Certiorari.

REASONS FOR DENYING THE WRIT

I.

THE PARENTS’ INVITATION TO THIS COURT TO

PROVIDE AN ADVISORY OPINION ABOUT COMMUNITY

SERVICE PROGRAMS IS INAPPROPRIATE.

The parents posit that this Court should grant its Writ because

the School District’s program reflects a growing national trend

toward community service raising the need for constitutional

standards. Couched in the language of Rule 17.1(c) of this Court,

the parents contend that the Third Circuit has decided an important

question of federal law which has not been, but should be, settled

by this Court. The School District acknowledges that there is a

trend among school districts toward instituting community service

programs, but this does not warrant the granting of the parents’

Writ so that the Court can establish constitutional standards.

It is beyond cavil that school districts around the country are

realizing, like the School District in the instant case, that

community service programs serve valuable educational benefits

and should be included in the: r curricula. The parents advance the

untenable position that simply because there is a trend toward

community service among school districts this Court is obliged to

establish constitutional standards. In effect, the parents are asking

that this Court issue an advisory opinion to establish constitutional

parameters governing mandatory community service programs.

7

It is well-established that this Court’s function is not to

provide advisory opinions. Federal Communications Com. y.

Pacifica Foundation, 438 U.S. 726 (1978); Alabama State

Federation of Labor v. McAdory, 325 U.S. 450 (1945). In Federal

Communications Com., this Court stated:

However appropriate it may be for an

administrative agency to write broadly in an

adjudicatory proceeding, federal courts have

never been empowered to issue advisory

opinions.

438 U.S. at 735.

In Alabama State Federation of Labor, this Court declared:

This Court is without power to give advisory

opinions. It has long been its considered

practice not to decide abstract, hypothetical or

contingent questions, or to decide any

constitutional question in advance of the

necessity for its decision, or to formulate a rule

of constitutional law broader than is required

by the precise facts to which it is to be applied.

325 U.S. at 461-2. (Citations omitted).

In accord with these principles, this Court should decline the

invitation to provide an opinion as to the constitutionality of

community service programs.

The parents also argue that the one appeals court — the Third

Circuit in the instant case — that has addressed the constitutional

questions raised by these programs “seriously misconstrued

relevant constitutional provisions and this Court’s precedents.”

8

(page 5 of the parents’ Brief). As discussed herein, the Third

Circuit trenchantly analyzed this Court’s precedents with respect

to the parents’ First and Thirteenth Amendment claims and found

that the School District’s community service program does not

constitute involuntary servitude nor does it require the students to

affirm ideals, beliefs, and standards. The Third Circuit did not, as

the parents spuriously contend, misconstrue relevant

constitutional provisions and this Court’s precedents, and

therefore it is unnecessary for this Court to hear the case.

Il.

THIS COURT SHOULD NOT GRANT THE PARENTS’

PETITION FOR WRIT OF CERTIORARI BECAUSE THE

THIRD CIRCUIT DISMISSED THE PARENTS’

THIRTEENTH AMENDMENT CLAIM IN ACCORDANCE

WITH WELL-ESTABLISHED CONSTITUTIONAL LAW.

The parents maintain that this Court should grant its Writ

because the Third Circuit’s decision conflicts with the plain

language of the Thirteenth Amendment and this Court’s precedents

interpreting the Thirteenth Amendment. In effect, the parents take

the position that their Writ should be granted because the Third

Circuit decided a federal question in a way which conflicts with

applicable decisions of this Court. (S. Ct. Rule 17.1(c)). The

School District argues that the Third Circuit correctly interpreted

the Thirteenth Amendment’s language and applicable decisions of

this Court, and therefore the parents’ Wnit should be denied.

The parents first contend that the Third Circuit’s decision

conflicts with the plain language of the Thirteenth Amendment. An

examination of the Amendment’s language and applicable cases

renders this contention meritless.

Section ! of the Thirteenth Amendment provides:

9

Neither slavery nor involuntary servitude,

accept as a punishment for crime whereof the

parties shall have been duly convicted, shall

exist within the United States, or any place

subject to their jurisdiction.

In United States v. Kozminski, 487 U.S. 931 (1988), this Court

crystallized the phrase “involuntary servitude”;

The primary purpose of the [Thirteenth]

Amendment was to abolish the institution of

African slavery as it had existed in the United

States at the time of the Civil War, but the

Amendment was not limited to that purpose;

the phrase “involuntary servitude” was

intended to extend “to cover those forms of

compulsory labor akin to African slavery

which in practical operation would tend to

produce like undesirable results.”

487 U.S. at 942.

It is clear from this definition that not every kind of forced

work or labor falls within the ambit of the phrase “involuntary

servitude”; only those forms akin to African slavery rise to this

level. As the Third Circuit noted in its opinion, “modern day

examples of involuntary servitude have been limited to labor

camps, isolated religious sects, or forced confinement.” For

example, in United States v. King, 840 F.2d 1276 (6th Cir. 1987), a

religious cult repeatedly used and threatened the use of physical

force to make children perform labor. The Sixth Circuit found this

egregious conduct rose to the level of involuntary servitude.

Similarly, in United States v. Booker, 655 F.2d 562 (4th Cir. 1981),

owners of a migrant labor camp forbade farm workers from leaving

without paying their debts and enforced this rule by threatening

10

physical harm to those who attempted to leave. The Fourth Circuit

held that this deplorable behavior constituted involuntary

servitude.

Conversely, in Butler v. Perry, 240 U.S. 328 (1916), the State

of Florida required men between the ages of twenty-one and forty-

five to perform sixty hours of work on the roads each year. This

Court held that such compulsory service did not violate the

Thirteenth Amendment and in so doing emphasized that a state

should be allowed to require able-bodied men to labor for a

reasonable time on public roads without compensation inasmuch

as this is a part of the duty which they owed to the public. In the

same vein, in Bobilin v. Board of Education, State of Hawaii, 403 F.

Supp. 1095 (D.C. Hawaii 1985), a school district required students

to perform up to seven full days of cafeteria duty in one year. In

holding that such a requirement did not constitute involuntary

servitude, the court stressed that not all types of forced labor are

proscribed by the Thirteenth Amendment.

In the instant case, the School District’s mandatory

community service program requires that high school students

perform sixty hours of community service over a period of four

years. The students are afforded a plethora of different types of

service from which to choose. They can fulfil their obligation by

tutoring other students. Can it seriously be argued that a

requirement that students tutor other students in view of the

educational benefit to be achieved is prohibited by the Thirteenth

Amendment? We suggest not. Clearly, in accord with the cases

cited, the Third Circuit properly found that the School District’s

program does not rise to the level of involuntary servitude.

In finding that the School District’s community service

program does not constitute involuntary servitude, the Third

Circuit emphasized that the program is primarily designed for the

students’ own educational benefit, notwithstanding some

caer mimimecieaiaaiaiaiat iii

11

incidental benefit to the recipients of the services. The parents,

however, insist that the Third Circuit misinterpreted the law in

arriving at this conclusion. Specifically, the parents argue that the

Third Circuit “creates an exception to the prohibition against

involuntary servitude for instances in which the government

concludes that the involuntary servitude is for the person’s own

good.” (Page 7 of the parents’ Brief).

The School District notes, in response to that argument, that

there is both a factual and legal basis for the Third Circuit’s

conclusion. To repeat, the School District instituted the program to

satisfy seventeen separate educational goals. Thus, while the

recipients of the service are benefited, the chief purpose of the

program is to provide educational benefits to the students. As noted

in United States v. Lewis, 644 F. Supp. 1391 (W.D. Mich. 1986), the

determination of whether conduct constitutes involuntary

servitude hinges, in part, upon a determination of whose benefit the

work is for. Citing numerous cases, the United States District for

the Western District of Michigan stated in Lewis:

The very essence of the Thirteenth Amendment

is a prohibition against forcing one person to

labor against his will for the benefit of another

person.

644 F. Supp. at 1400. (Emphasis added). Similarly, in Bobilin,

supra, the court emphasized that many services performed by

students, such as erasing blackboards or serving as crosswalk

monitors, provide educational benefits for the students:

These experiences teach not only neatness and

responsibility but also civic attitudes

fundamental in a collective society where

citizens often are called upon to “do his share”

without economic compensation.

12

403 F. Supp. at 1108.

Therefore, contrary to the parents’ assertions, it was proper

for the Third Circuit to consider that the purpose was to benefit the

students in concluding that the School District’s community

service program does not rise to the level of involuntary servitude.

The parents also argue that it was improper for the Third

Circuit to conclude that the program is neither coercive nor

involuntary. The parents’ argument is disemboweled by a line of

cases. In Lewis, supra, the court held that a finding of

involuntariness requires that the person performing the work

against his will, under coercion, and threatened by a superior and

overpowering force. In Watson v. Graves, 909 F.2d 1549 (5th Cir.

1990), the court added that there is no involuntary servitude when

the person performing the work has a choice, even though it is a

painful one. The court in Watson emphasized that a showing of

compulsion is a prerequisite to proof of involuntary servitude.

The case law supports the principle that when those forced to

perform work have a choice, regardless of how painful or

unattractive that choice is, the work does not rise to the level of

involuntary servitude. See, e.g., International Union v. Wisconsin

Employment Relations Board, 336 U.S. 245 (1949) (injunction of

strike by State Labor Relations Board was not violative of the

Thirteenth Amendment because the employees had the option of

quitting their jobs); Cunningham v. Virginia School of

Cosmetology, 446 F. Supp. 780 (E.D. Va. 1979) (no violation of the

Thirteenth Amendment for school to utilize its students as

hairdressers for customers because of the students’ voluntary

choice to enroll in the school); Audet v. Board of Regents, 606 F.

Supp. 423 (D. R.I. 1985) (state’s refusal to allow a teacher to

rescind his certification in subjects in which he no longer wished to

teach was not violative of the Thirteenth Amendment because the

teacher had the choice of not teaching); Sellers v. Phillips Barber

13

Shop, 46 N.J. 340, 217 A.2d 121 (1966) (an order directing a barber

to cut the hair of blacks against his will was not violative of the

Thirteenth Amendment because the barber had the choice of not

continuing the practice of barbering).

In the instant case, the parents have several choices or options.

They could enroll their children in any private school or withdraw

their children from school and teach them at home. Moreover, they

have the choice of continuing public education at the School

District without performing the community service. In that event,

the students would not graduate from the School District, but they

could then obtain a diploma under the Pennsylvania’s G.E.D.

provisions after complying with certain testing procedures.

Although these choices may not seem attractive to the parents, in

accord with Lewis and Watson, these choices remove the

involuntary nature of the community service.

To summarize the law, in order for there to be a finding of

involuntary servitude, persons must be required to (1) perform

labor akin to African slavery (2) for the benefit of others (3)

without having any choices. None of these circumstances is

present in the instant case. Therefore, contrary to the parents’

assertions, the School District has not conditioned receipt of public

education on surrendering of the students’ constitutional right to

be free from involuntary servitude, nor has it deprived the students

of the benefit of free, public education.

For all of these reasons, the School District respectfully

requests that with respect to the parents’ Thirteenth Amendment

claim, this Court deny the parents’ Petition for Writ of Certiorari.

14

III.

THIS COURT SHOULD NOT GRANT THE PARENTS’

PETITION FOR WRIT OF CERTIORARI BECAUSE THE

THIRD CIRCUIT DISMISSED THE PARENTS’ FIRST

AMENDMENT CLAIM IN ACCORDANCE WITH WELL-

ESTABLISHED CONSTITUTIONAL LAW.

The parents also contend that this Court should grant its Writ

because the Third Circuit’s decision allegedly conflicts with this

Court’s precedents prohibiting coerced affirmance of beliefs

under the First Amendment. Again, the parents are taking the

position that their Writ should be granted because the Third Circuit

decided a federal question in a way which conflicts with applicable

decisions of this Court. (S. Ct. Rule 17.1(c)). The School District

argues that the Third Circuit correctly interpreted applicable

decisions of this Court and concluded that the community service

program does not force the students to endorse and affirm ideals,

beliefs, and standards in contravention of their First Amendment

rights.

To reiterate, the School District instituted the community

service program to advance seventeen educational purposes.

These purposes include having students assume responsibility and

to accept the consequence of their actions, giving students a sense

of appreciation of the worth of community organizations, and

giving students the opportunity to explore new roles, identities,

and interests.

In attacking the School District’s purposes for instituting the

community service program, the parents have flagrantly contorted

and taken out of context comments made by School District

Official Uriel Trujillo.

The parents stated in their brief that:

——————

15

The school directors thought that community

service was too important to be left to

voluntary efforts to help others in an age of

“material consumption, self-indulgence and

narcissism.” Stressing the necessity of

community service to cure supposed

selfishness and materialism infecting children

is a profoundly political statement.

(Pages 9-10 of the parents’ Brief).

The School District wishes to make several points in response.

First, the School District does not think that community service is

“too important to be left to voluntary efforts.” To the contrary, the

School District believes that performing community service serves

valuable educational objectives and every child should be required

to perform it. As Mr. Trujillo noted, if the program were not

mandatory, many students would not get involved. (Page 59 of the

Appendix to the parents’ Brief).

Second, Director Trujillo did not state that the community

service program was designed “to cure selfishness and materialism

infecting children.” His point was that as a result of reading

newspapers and magazines and watching television, young people

are exposed, to some degree, to negative values such as selfishness

and materialism. The community service program is not designed

to “cure” these values, but to advance the seventeen educational

purposes referenced earlier, as conceded by the parents.

Third, by requiring the students to perform community

service, the School District is not making “a profoundly political

statement.” To repeat, School District officials believe that

performing community service provides valuable educational

benefits for the children. By implementing the community service

program, the School District is not making any statement

whatsoever, let alone a “profoundly political statement.”

16

Along the same lines, the parents argue that the School

District’s community service program requires students to engage

in expressive conduct in contravention of their First Amendment

rights. The parents’ argument is eviscerated by a long line of

decisions rendered by this Court. In Texas v. Johnson, 491 U.S. 397

(1989), this Court made clear that there are limitations upon the

types of conduct which are afforded First Amendment protection.

Citing United States v. O’Brien, 391 U.S. 367 (1967) and Spence v.

Washinton, 418 U.S. 405 (1974), this Court declared in Texas:

While we have rejected the view that an

apparently limitless variety of conduct can be

labeled “speech” whenever the person

engaging in the conduct intends thereby to

express an idea, we may have acknowledged

the conduct may be sufficiently imbued with

elements of communication to fail within the

scope of the First and Fourteenth Amendments.

In deciding whether particular conduct

possesses sufficient communicative elements

to bring the First Amendment into play, we

have asked whether “an intent to convey a

particularized message was present, and

[whether] the likelihood was great that the

message would be understood by those who

viewed it.”

491 U.S. at 404.

In the same vein, in City of Dallas v. Stanglen, 490 U.S. 19

(1989), the Court noted that:

It is possible to find some kernel of expression

in almost every activity a person undertakes ——

for example, walking down the street, or

17

meeting one’s friends at a shopping mall, but

such a kernel is not sufficient to bring the

activity within the protection of the First

Amendment.

490 U.S. at 25.

Thus, in analyzing a claim brought under the First

Amendment, a court must determine whether the conduct

complained of is inbued with elements of communication and

whether it manifests an intent to convey a particularized message.

The court, of course, must be mindful that a finding of some kernel

of expression in conduct is not tantamount to a finding that the

conduct is afforded First Amendment protection.

In several cases, this Court has found a First Amendment

violation because the conduct complained of was imbued with

elements of communication and manifested an intent to convey a

particularlized message. See, e.g., Tinker v. DesMoines

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

(public school students were suspended for wearing armbands to

protest the government’s policy in Vietnam); Wooley v. Maryland,

430 U.S. 705 (1977) (state required that a person display its motto

“Live Free or Die,” as embossed on cars’ license plates); West

Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)

(school board adopted a resolution requiring public school pupils

to salute the flag while reciting a pledge of allegiance under the

penalty of expulsion).

The parents argue that “the facts of Barnette are remarkably

similar to those of the instant case” and “whether through forced

flag salutes in Barnette or forced community service in the instant

case, school directors are prescribing a political orthodoxy and

compelling the students to submit to that philosophy.” (page 10 of

the parents’ Brief). The School District argues and the Third

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Circuit so held, that unlike the flag salute in Barnette, performing

the community service lacks the necessary expressive component

to rise to the level of a First Amendment violation. In arriving at

this conclusion, the Third Circuit made several salient points.

First, the Third Circuit emphasized that in determining

whether conduct is expressive, it is important to examine the

viewers’ perception of the activity. Citing several cases, the Third

Circuit noted that participating in a civil rights march, burning a

draft card to protest the war, and labor picketing are activities

afforded First Amendment protection in part because people

observing the conduct would see it as the expression of a

particularized message. In the instant case, the parents failed to

produce any evidence that people in the community who see the

students performing community service would perceive their

actions as an intended expression of a particularized message of

their belief in the value of community service and altruism. As the

Third Circuit aptly stated, it is just as likely that students

performing the commuity service would be viewed merely as

students completing their high school graduation requirements.

The Third Circuit also observed in its opinion that under some

circumstances, a school-imposed community service program

could constitute expressive conduct implicating First Amendment

considerations. For example, a student required to provide

community service to an organization whose message conflicted

with the student’s opposing views could have a tenable First

Amendmentclaim. In the instant case, however, itis important that

students have a multiplicity of options which allows them to

provide services to organizations with a wide range of political,

religious, and moral views. Students’ options include, inter alia,

conducting historical research, tutoring other students, and

working with the handicapped, elderly, or homeless.

However, the parents intimate in their Brief that students are

Oe

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not afforded a wide variety of options from which to choose, when

they state, citing in part the Third Circuit’s opinion, that “students’

choices are limited to organizations that (1) demonstrate their

intention to promote the welfare of the community; (2) do not

‘discriminate against any race, religion, or sex’; and (3) provide

assurances that the organization is ‘free from doctrinal

motivation.” ” (page 12 of the parents’ Brief). This representation

is false. Students do not have to provide service to any

organization, but may provide an independent service.

Furthermore, in administering the program, the School

District maintains a list of more than seventy approved community

service organizations and students and parents may submit names

or other potential organization to the District Coordinator for

approval. Accordingly, the parents’ suggestion that the students

have “limited” options is meritless.

Moreover, and of critical importance, the parents

unanimously agreed that the School District’s program does not

compel the students to endorse or affirm any ideals, beliefs, or

standards.

Barbara Steirer admitted:

Q. They can perform the service and willingly

express their opinion if they think it’s a

ridiculous program and still pass, can’t they?

A. If they do it, they pass, if they don’t do it —.

Q. But they could express and hold to any

ideal and belief they want to and still pass; isn’t

that correct?

A. Yes, I guess their own idea.

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Thomas Steirer concurred with his wife:

Q. The students will not be asked to adopt or

express any particular ideal or belief in order to

pass, they just have to select a service, perform

it, document it, and complete the summary

experience forms; isn’t that true?

A. Yes.

Barbara Moralis testified:

Q. Do you have any evidence that a child will

have to believe in the objectives and purposes

of the progam in order to pass it?

A. We see nothing yet.

Q. Do you have any evidence?

A. Not yet.

Q. Do you have any evidence that a child will

have to say it agrees with the purposes in order

to pass it?

A. Not yet.

Similarly, Thomas Moralis stated:

Q. And isn’t it true that students will not be

asked to adopt or express any particular ideals

or beliefs in order to pass?

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A. That is as stated in the curriculum guide.

Q. Anda child does not have to agree with the

program in order to pass it, does he?

A. As far as I know, no.

Q. The child does not have to believe in

objectives of the program in order to pass it,

does he?

A. As far as I know, again, at this point, no.

Therefore, the parents’ contention that the program forces the

children to endorse or affirm any ideals, beliefs or standards is

untenable.

In sum, in order for conduct to be afforded First Amendment

protection, it must be imbued with elements of communication and

must manifest an intent to convey a particularized message. Unlike

the conduct in Barnette, Tinker, and Wooley, the mandatory

community service program in the instant case is not imbued with

the requisite elements of communication, and the performance of

such service does not convey a particularized message. The

Students are afforded a multitude of options, including

independent projects, and therefore would not have to provide

service to an organization whose message conflicted with theirs.

The students are not required to affirm beliefs, ideals, or standards,

nor would people in the community view them as affirming beliefs,

ideals, or standards. Thus, contrary to the assertions of the parents,

the School District is not conditioning the receipt of a publicly

provided education on the surrender of the First Amendment right

to be free of coerced affirmation of belief. Indeed, the students are

Surrendering no First Amendment rights by performing

community service.

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For all these reasons, the School District respectfully requests

that with respect to the parents’ First Amendment claim, this Court

deny the parents’ Petition for Wnt of Certiorari.

CONCLUSION

The Third Circuit did not decide a federal question in a way

which conflicts with applicable decisions of this Court, nor did it

decide an important question of federal law which has not been, but

should be, settled by this Court.

The Third Circuit dismissed the parents’ First and Thirteenth

Amendment claims in accordance with well-established

constitutional law. Moreover, it is unnecessary for this Court to

establish constitutional standards governing mandatory

community service programs. Accordingly, the School District

respectfully requests that this Court deny the parents’ Petition for

Writ of Certiorari.

Respectfully submitted,

MICHAELI. LEVIN

Counsel of Record

CLECKNER AND FEAREN

Attorneys for Respondents

Willow Grove Plaza

102 York Road, Suite 2000

Willow Grove, Pennsylvania 19090

(215) 657-4528