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December 30, 1992

KEARA SEASE, et al., Plaintiffs,

The opinion of the court was delivered by: CLIFFORD SCOTT GREEN

 Green, S.J.

 December 30, 1992

 Plaintiffs, various student and former members of the Central High School Gospel Choir (the "Gospel Choir"), brought this action pursuant to 42 U.S.C. §§ 1983 and 1988, 28 U.S.C. §§ 2201 and 2202 and the First, Fifth, and Fourteenth Amendments to the United States Constitution, alleging, inter alia, that Defendant, the School District of Philadelphia's (the "School District") policies regarding the Gospel Choir violate federal law and Plaintiffs' constitutional rights.

 Defendant filed an answer denying these allegations and filed a counterclaim requesting, inter alia, that the Court declare that the School District's actions with respect to the Gospel Choir were consistent with the requirements of the Equal Access Act 20 U.S.C. § 4071 et seq. Plaintiffs and Defendant have moved the Court for Summary Judgment.

 This court has jurisdiction of the constitutional and federal claims pursuant to 42 U.S.C. §§ 1983 and 1988. Since Plaintiffs' claims arise in Philadelphia, Pennsylvania, venue is proper under 28 U.S.C. § 1391.

 Upon consideration of the parties' motions for summary judgment, the responses thereto, oral argument and the record, and for the reasons set forth below, Plaintiffs' motion for summary judgment must be denied and Defendant's motion for summary judgment must be granted.


 In approximately October, 1987, two students at Central High School ("Central High") in Philadelphia, Pennsylvania, asked Donald Rivera, a Central High teacher, and then director of the Central High Black Student Union, whether they could establish a gospel choir at the school. Mr. Rivera responded favorably, and the students asked a school secretary, Willma Safford, to head and direct the gospel choir. This choir became known as The Central High School Gospel Choir ("Gospel Choir").

 The Gospel Choir is a non-credit, non-curriculum student group that meets on a weekly basis during non-instructional hours at Central High. The Gospel Choir has sung at school assemblies during the school day at Central High, and has used the school's public address system and its organ.

 In addition to performing at school assemblies, the Gospel Choir held its 1988, 1989, and 1990 annual Spring Concerts in Central High's auditorium. The Gospel Choir paid Central High a $ 128.00 fee for the use of Central High's premises after school hours for its preparation for the Spring Concerts in 1989 and 1990. Between 1987 and 1991, the Gospel Choir also performed at churches, universities, public schools, theaters, on television, and in other public places throughout the Philadelphia area.

 Mrs. Safford's Involvement With The Gospel Choir

 Mrs. Willma Safford is a full time employee of Central High, where she has worked as a secretary since September 1987. She has been employed by the School District since 1986 in other capacities. Mrs. Safford has served as the director of the Gospel Choir since its inception, has presided over every Gospel Choir performance since 1987, and has attended virtually each of its practices.

 Mrs. Safford is responsible for the overall leadership, organization, administration and management of the Gospel Choir. She regularly organizes and conducts its practice sessions, is responsible for its fundraising, books concerts for the Gospel Choir outside of Central High, obtains buildings and P.A. systems for its concerts, and corresponds with the general public -- using the Central High letterhead -- on behalf of the Gospel Choir. In one such letter, Mrs. Safford wrote to the University of Delaware, regarding an upcoming concert, "We are looking forward to a grand time in the Lord." In another letter she wrote: "We look forward to coming and having a good time in the Lord."

 Mrs. Safford testified on deposition that she used the Central High Letterhead for the Gospel Choir's correspondence because, "we [the Gospel Choir] were part of the school . . . I saw us as representatives of the school." (Safford Dep., Vol. II, at 60-62.) Moreover, Mrs. Safford testified that the Gospel Choir used "Central High" as part of its name because the Gospel Choir believed that it represented Central High. (Safford Dep., Vol. II, at 60-61.)

 Mrs. Safford also receives letters at the school from churches and other organizations requesting the Gospel Choir to perform or confirming Gospel Choir performances. Additionally, Mrs. Safford receives telephone calls on the Gospel Choir's behalf at Central High.

 Mrs. Safford has led Gospel Choir performances without "clocking out" as school secretary, or receiving a deduction in pay. She has occasionally written songs which the Gospel Choir has performed. Plaintiffs' have represented that the Gospel Choir could not exist without Mrs. Safford's leadership. (Amended Complaint P 34.)

 Involvement By Other School Officials and Non-Students

 Other school employees in addition to Mrs. Safford are identified as being connected with the Gospel Choir. Mrs. Clara Tolbert, the assistant principal of Central High, is listed as the Gospel Choir's sponsor on a 1991 Program for a Gospel Choir performance, and Dr. Sheldon Pavel, Central High's President, is listed as "president".

 Although the Gospel Choir is composed largely of Central High Students, several "non-school persons", or non-students are also involved. For example, former Central High students continue to sing with the Gospel Choir. The Gospel Choir also employs James Plez, a non-student, as its pianist. Mr. Plez attends every practice and participates in the selection of music for the Gospel Choir. Mr. Plez also writes music for the Gospel Choir, and is paid for his contributions.

 Religious Activities of the Gospel Choir

 The record reveals that virtually every song performed by the Gospel Choir prior to the initiation of this lawsuit contained some reference to God or Jesus Christ.

 Since the Gospel Choir's inception in 1987, through 1990, the members of the Gospel Choir routinely joined together in prayer before practices and performances. Several of these prayers took place at Central High, with Mrs. Safford participating. Mrs. Safford testified in her deposition that she was "sure" that she led the members in prayer on occasion. (Safford Dep., Vol. I at 63.)

 At lest one Gospel Choir program book for its Spring concert is replete with religious symbols, quotations from Scripture, and references to "Jesus", "God", "Christ", "Lord", and "Our Creator". Undisputed testimony reveals that during one of the Spring Concerts all Pastors attending were admitted free, and were asked to stand to be acknowledged by the audience. Also at a Spring Concert, a minister encouraged the praise of God and led the chant, "Jesus is a mighty God". He asked the audience -- which he referred to as a congregation -- to join him in prayer which was being delivered as song. On another occasion, Mrs. Safford stated, "you must know Jesus to be saved."

 The Gospel Choir's Finances

 From its inception in 1987 through 1991, the Gospel Choir received "donations" or "free will offerings" from the places that it performed, including churches. Members of the Churches at which the Gospel Choir performed collected the offerings and gave the collected money to Mrs. Safford.

 The money collected from the church offerings is included in monies given to various members of the Gospel Choir in the form of scholarships. On occasion, parents of the Gospel Choir members have also received money.

 Prior to the 1990-91 school year, Central High School handled the Gospel Choir's money in accordance with School District rules. In 1991, however, several parents of Gospel Choir members took control of all of the Gospel Choir's finances. The Gospel Choir raised over $ 7,500.00 at its 1991 Fourth Annual Spring Concert, and returned $ 263.00 to the School District.

 The Cause of This Litigation

 On April 28, 1988, Dr. Pavel, the President of Central High, wrote a letter to Mrs. Safford and others summarizing a recent meeting about the Gospel Choir. At this meeting there was a concern that the current structure of the Gospel Choir violated the Equal Access Act recently enacted by Congress. Dr. Pavel's letter stated, inter alia, that "any future [Gospel Choir] programs are to be in ...

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