On Appeal from the United States District Court for the Middle District of Pennsylvania.
Adams, and Garth, Circuit Judges, and Brotman, District Judge.*fn*
This appeal requires us to resolve the tension between the first amendment free speech claim of high school students meeting in an activity devoted to prayer, and a school district's claim that the Establishment Clause -- also found in the first amendment -- overrides free speech guarantees in the context of a "limited forum." We resolve this conflict between the two constitutional guarantees in favor of the Williamsport Area School District.
Plaintiffs-Appellees Lisa Bender, et al., are or were students at the Williamsport Area High School. It was their desire to form a student organization within the high school, which would be devoted to prayer and other religious activities, and which would meet during the regularly scheduled student activity period. The school officials, fearing violation of the Establishment Clause of the first amendment, denied the students permission to meet.
The students brought this suit for declaratory and injunctive relief under 42 U.S.C. § 1983, alleging violation of their constitutional rights of free speech and free exercise of religion. After considering the affidavits, stipulations, and depositions of the parties, the district court granted summary judgment in favor of the school district and against the students on the free exercise claim.*fn1 Relying, however, on Widmar v. Vincent, 454 U.S. 263, 70 L. Ed. 2d 440, 102 S. Ct. 269 (1981), the district court agreed with the students that their free speech rights had been abridged, and that, under these circumstances, the Establishment Clause did not provide a compelling state interest to justify that abridgement. The court therefore granted summary judgment in favor of the students and against the school district on the free speech claim.*fn2 Bender v. Williamsport Area School District, 563 F. Supp. 697 (M.D. Pa. 1983). We conclude that the Establishment Clause concerns expressed by the school district must prevail. We therefore reverse.
Because this appeal comes to us from the grant of summary judgment, and given the crucial role which the particular facts play in every first amendment analysis, special care must be taken in reciting the factual setting. Although, in several respects, the record below could have been more fully developed, we agree with the district court that there are no material disputes of fact that would preclude consideration of the merits of this case in the context of summary judgment.*fn3
Plaintiffs, Lisa Bender, et al. (hereinafter described collectively as "the students") are or were enrolled*fn4 at the Williamsport Area High School in Williamsport, Pennsylvania. They sought to organize a group known as "Petros," which would "meet for the purposes of [students] aiding each other in his social, emotional and intellectual personal growth and development by prayer, the application of God's Holy Word to their problems and sharing of personal experiences." Complaint para. 31, App. at 7. The purpose was also stated to school authorities in the group's application for approval:
PROPOSAL FOR A NEW STUDENT ORGANIZATION
[ILLEGIBLE WORD] [sic] (the Rock)
NATURE OF THE ORGANIZATION
The organization will be a non-denominational prayer fellowship. Participation will be voluntary and open to all students.
PURPOSE OF THE ORGANIZATION
The purposes of the organization will be to promote spiritual growth and positive attitudes in the lives of its members.
Selection of leaders will be by democratic election. The leaders will be responsible for directing the meetings and coordinating activities in a manner that will carry out the purpose of the organization.
Regular meetings of the organization will be held on school premises during the Tuesday and Thursday morning activity periods. They will include Scripture reading, discussion, prayer and other activities which may be of interest to the group.
Meetings of the organization will be supervised by a faculty advisor. Student attendance may be verified by the signing of a roster.
App. at 87 ("Proposal for a New Student Organization"). The students asked permission to meet during the school's regularly scheduled activity period. They agreed that they would not use the bulletin boards, newspaper, or public address systems to promote their meetings. App. at 401 (Affidavit of Lisa Bender).
Petros was allowed to hold one organizational meeting, at which approximately forty-five students were present. During the meeting, passages of scripture*fn5 were read, and students who wished to do so, prayed. After this first session, however, the school administration withheld permission for further meetings pending investigation as to their legality. After consultation with the school's attorney, the Williamsport School Board denied the student's request for permission to meet. The President of the School Board wrote to Bender, stating:
The solicitor [has] advised the Board that to approve your proposal would be a violation of existing case law and therefore, an improper action. The Board decided, therefore, to deny your appeal. Please be assured that neither the School Board nor the Administration regard the proposed prayer fellowship group as being unworthy. Present law simply does not permit public schools to authorize or support religious activities on school property.
App. at 235 (Letter of R.F. Eberhart).
The activity period at Williamsport Area High School is held during a thirty minute time slot regularly provided on Tuesdays and Thursdays during which student groups may conduct meetings.*fn6 The school day begins at 7:45 a.m. when all students must be in their homerooms. School supervision of students begins the moment they enter the school premises. App. at 356 (Affidavit of Principal Wayne Newton). The activity period starts at 7:57 a.m., after attendance has been taken in homeroom and the school day has begun. Those students who do not participate in a club may study in the library, visit the school's computer station, examine career or college placement materials, or simply remain in their home rooms until the next class period begins. Participation in activities is completely voluntary, although each student must be on school grounds and accounted for during the activity period. Pennsylvania law requires that students participate in a minimum amount of instruction per year, which is variously calculated as: (1) 180 school days per year, with each day consisting of seven hours, minus 1-1/2 hours for lunch and breaks; (2) a school week consisting of 27 1/2 hours of instruction; or (3) 990 hours of instruction each year. Pa. Stat. Ann. tit. 24, § 15-1504 to 1504 (Purdon Supp. 1983).*fn7 App. at 366 (affidavit of Principal Wayne Newton).
In the memory of the current principal, who has served since 1974, no proposed student club or activity has ever been denied school sponsorship, other than Petros.*fn8 The only articulated qualification as to the nature of the activity allowed during this period is that it "contribute to the intellectual, physical or social development of the students and is otherwise considered legal and constitutionally proper."*fn9 App. at 367 (Affidavit of Principal Wayne Newton).
It is the policy of the school that each student club have an adult advisor, who is usually a member of the faculty, but may also be another school employee or a parent. App. at 404 (Stipulation of Parties). There is no written policy "concerning the role of adult advisors of . . . clubs or who those adult advisors must be,"*fn10 id., although an advisor or monitor must be present at each student meeting. App. at 366 (Affidavit of Principal W. Newton). The principal has final approval over who the advisor will be. At the first meeting of Petros, a monitor was present, but used the time to grade papers and took no part in the meeting. App. at 228, 402 (Affidavits of L. Bender).
Our analysis will proceed along these lines:
First, did the student members of Petros have a free speech right guaranteed by the first amendment? To answer this inquiry, we will have to examine whether the school district created a forum, and if so, what kind, i.e. was it "public" or "limited," and if "limited," in what manner?
Second, if, as we conclude, the Williamsport school district did create a forum, limited to accommodating student activities which would promote the intellectual and social development of its students as part of the secondary school educational process, then did the students in the Petros program come within the prescribed parameters of that limited forum so created?
Third, assuming an affirmative answer to the preceding inquiries, may the school district validly object to the presence of Petros within the school, based on the potential violation of the Establishment Clause? The answer to this question, in turn, depends on an analysis of the three pronged Lemon tests: (1) would permitting the activity within the school day have a secular purpose; (2) would permitting the activity have the primary effect neither of advancing nor inhibiting religion; and (3) would permitting the activity avoid excessive government entanglement with religion? See Lemon v. Kurtzman, 403 U.S. 602, 612-13, 29 L. Ed. 2d 745, 91 S. Ct. 2105 (1971) and infra note 20.
Lastly, if we conclude, as we do, that allowing Petros to meet within the school would violate the Establishment Clause, then which of the two provisions of the first amendment should control, where the students, on the one hand, have a free speech right, but the school district, on the other hand, would be in violation of the Establishment Clause if it permitted the religious activity and speech of Petros? The last stage of our analysis, therefore, requires a balancing process, which, when given effect, we believe sustains the action taken by the Williamsport school district.
III. The Students' Free Speech Rights
We turn then to the first of the substantive legal issues involved in this case. It is the student's contention that, by denying Petros access to the activity period, the school district impinged upon their constitutional rights. Indeed, in order to prevail on their claim, the students must first satisfy us as a threshold matter that they enjoy a first amendment free speech right which was abridged by the refusal of the school district to grant Petros permission to meet. Absent this free speech right, there would be no basis upon which a court could intervene in the operation of a local high school. As the Supreme Court has noted:
Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint. . . .By and large, public education in our Nation is committed to the control of state and local authorities. Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate constitutional values.
Epperson v. Arkansas, 393 U.S. 97, 104-05, 21 L. Ed. 2d 228, 89 S. Ct. 266 (1968). It is therefore our task at the outset to decide whether such constitutional values are in fact "directly and sharply" implicated.
A. Public or Limited Forum
In determining the nature of the free speech protections which exist within the school, we of course take note of the general axiom that students do not shed their rights to freedom of speech or expression at the schoolhouse gate. E.g., Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 21 L. Ed. 2d 731, 89 S. Ct. 733 (1969). Nor is speech any less protected because it is religious in nature. See Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 647, 69 L. Ed. 2d 298, 101 S. Ct. 2559 (1981). As Justice Powell, writing for the Court in Widmar v. Vincent, 454 U.S. 263, 269, 70 L. Ed. 2d 440, 102 S. Ct. 269 (1981), stated, "religious worship and discussion . . . are forms of speech and association protected by the first amendment."
On the other hand, the mere fact that speech is involved and the free speech clause of the first amendment is invoked does not require the government to open the use of its facilities as a public forum to anyone desiring to use them. See Perry Educational Association v. Perry Local Educators Association, 460 U.S. 37, 103 S. Ct. 948, 954, 74 L. Ed. 2d 794 (1983). As the Supreme Court has noted, the "First Amendment does not guarantee access to property simply because it is owned or controlled by the government." United States Postal Service v. Council of Greenburgh Civic Associations, 453 U.S. 114, 129, 69 L. Ed. 2d 517, 101 S. Ct. 2676 (1981). The State, like any other property owner, can close traditionally non-public facilities from use as a forum for advocacy. Perry, 103 S. Ct. at 955; Widmar v. Vincent, 454 U.S. 263, 266-67, 70 L. Ed. 2d 440, 102 S. Ct. 269 .
We noted in International Society for Krishna Consciousness v. New Jersey Sports & Exposition Authority, 691 F.2d 155 (3d Cir. 1982), that:
The primary factor in determining whether property owned or controlled by the government is a public forum is how the locale is used. Streets, parks and sidewalks are the paradigms of a public forum because they have traditionally served as a place for free assembly and communication by citizens. . . .
Public forum status is not appropriate for a locale where the full exercise of First Amendment rights would be inconsistent with the "special interests of a government in overseeing use of the property."
Id. at 160 (quoting Consolidated Edison Co. v. Public Service Commission, 447 U.S. 530, 540, 65 L. Ed. 2d 319, 100 S. Ct. 2326 (1980)).
A high school, unlike the public streets and parks, is not by tradition a forum for public expression. See Perry, 103 S. Ct. at 955. Clearly, use of school premises as a public forum by anyone or any group desiring to avail themselves of full and unrestricted use of first amendment rights would disrupt the educational purpose of a secondary school and thus be "inconsistent with the special interests of the government." The Williamsport Area School District, therefore, would have been justified in refusing to reserve high school property for use as a public forum for expression, and would violate no constitutional constraints in doing so. See Seyfried v. Walton, 668 F.2d 214 (3d Cir. 1981)(students had no first amendment right to use school drama facilities in order to produce play of their choice).
The Supreme Court, however, has held that, when the state decides, albeit on its own motion, to open its facilities for use as a "limited forum," for particular purposes, it assumes a responsibility to explain its exclusion of a qualified group under applicable constitutional criteria. "Although a state is not required to indefinitely retain the open character of the facility, as long as it does so it is bound by the same standards as apply in a traditional public forum." Perry, 103 S. Ct. at 955. See Widmar v. Vincent, 454 U.S. 263, 70 L. Ed. 2d 440, 102 S. Ct. 269 (1981)(public forum for a limited purpose such as use by certain groups); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 555-59, 43 L. Ed. 2d 448, 95 S. Ct. 1239 (1975)(municipal theater was constituted as "public forum," and therefore city could not exclude a particular dramatic production without satisfying constitutional safeguards); see also City of Madison, Joint School District No. 8 v. Wisconsin Employment Relations Commission, 429 U.S. 167, 50 L. Ed. 2d 376, 97 S. Ct. 421 (1976)(free speech rights attach at school board meeting opened to public).
Although the State may create a "limited forum" for particular groups or specific activities, Perry, 103 S. Ct. at 955 n.7., it may not exclude expression that falls within whatever objective parameters it has set. Nor may it exclude a group which is otherwise eligible to use the facility. See Perry, 103 S. Ct. at 956 (free speech right to limited forum extends to activities "of similar character").
It is in the context of distinguishing between a public forum, and a limited or limited open forum, that we examine Widmar v. Vincent, 454 U.S. 263, 70 L. Ed. 2d 440, 102 S. Ct. 269 (1981), the principal case upon which the students and the district court rely. In Widmar, students at the University of Missouri sought permission, as did the students in Williamsport, to use school facilities for religious activities. They formed a group known as "Cornerstone," and for a time were allowed to hold meetings on school premises. The university withdrew that permission, however, citing school regulations against use of its facilities "for purposes of religious worship or religious teaching."
In a suit brought by members of Cornerstone, the Supreme Court held that, by opening its facilities for general use by campus groups, the university had created a forum for its students, and thus it could not make content-based discriminations against particular groups absent a ...