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Pope by Pope v. East Brunswick Bd. of Educ.

filed: December 23, 1993.

DONNA POPE, BY HER GUARDIAN AD LITEM WILLIAM POPE, APPELLEE
v.
EAST BRUNSWICK BOARD OF EDUCATION; DAVID SEIDEN, IN HIS OFFICIAL CAPACITY; PATRICK SIRR, IN HIS OFFICIAL CAPACITY; DONALD DICENZO, IN HIS OFFICIAL CAPACITY; KITTY MARTIN, IN HER OFFICIAL CAPACITY; THOMAS MAUGHAN, IN HIS OFFICIAL CAPACITY; HENRY PRZYSTUP, IN HIS OFFICIAL CAPACITY; NEAL ROSEN, IN HIS OFFICIAL CAPACITY; NORMA TEICHER, IN HER OFFICIAL CAPACITY; ROBERT VAN WAGNER, IN HIS OFFICIAL CAPACITY; JON KOPKO, IN HIS OFFICIAL CAPACITY, APPELLANTS



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY. D.C. Civil Action No. 91-00785.

Before: Becker, Nygaard and Alito, Circuit Judges.

Author: Nygaard

Opinion OF THE COURT

NYGAARD, Circuit Judge.

The East Brunswick Board of Education and its individual members appeal from an order of the district court granting permanent injunctive relief and nominal damages to plaintiff Donna Pope. The district court held that East Brunswick violated the Equal Access Act, 20 U.S.C. § 4071 et seq., by refusing to certify plaintiff's Bible Club as a student organization and accord it equal treatment with other student groups at East Brunswick High School. Because we find that East Brunswick failed in its attempt to close its limited open forum, we will affirm.

I.

A.

In Widmar v. Vincent, 454 U.S. 263, 102 S. Ct. 269, 70 L. Ed. 2d 440 (1981), the Supreme Court held that a state college that maintained a limited public forum violated the First Amendment Free Speech Clause when it refused a religious student group access to school facilities. It also held that allowing such access would not violate the Establishment Clause of the First Amendment. Id. at 276-77, 102 S. Ct. at 277-78.

The question left unanswered by Widmar was whether its rationale extended to secondary schools as well as universities. Justice Powell, writing for the majority, noted that college students "are less impressionable than younger students" and should therefore understand that a policy of equal access for religious groups does not imply impermissible state endorsement of religion. Id. at 274 & n.14, 102 S. Ct. at 276-77 & n.14. We later held that equal access for religious groups in secondary schools violated the Establishment Clause, focusing on the differences between the high school and college environments and the maturity of their respective students. Bender v. Williamsport Area School Dist., 741 F.2d 538, 551-55 (3d Cir. 1984), vacated on other grounds, 475 U.S. 534, 106 S. Ct. 1326, 89 L. Ed. 2d 501 (1986).

Congress responded in 1984 by enacting the Equal Access Act, Pub. L. 98-3771, 98 Stat. 1302 (codified at 20 U.S.C. §§ 4071-74). Under the Act, if a public secondary school receives federal financial assistance and has a "limited open forum," it may not discriminate against or deny equal access to student groups based on the religious or other content-based nature of the speech at their proposed meetings. 20 U.S.C. § 4071(a). A limited open forum, in turn, is created whenever a school allows "one or more noncurriculum related student groups to meet on school premises during noninstructional time." 20 U.S.C. § 4071(b). In Board of Educ. v. Mergens, 496 U.S. 226, 110 S. Ct. 2356, 110 L. Ed. 2d 191 (1990), the Supreme Court held that the Act was, at least on the facts presented there, constitutional. Id. at 253, 110 S. Ct. at 2373. Perhaps more important for the purposes of this case, it defined the term "noncurriculum related student group." 496 U.S. at 239-40, 110 S. Ct. at 2366.

B.

These facts have been stipulated by the parties. The East Brunswick Board of Education is the elected school board governing East Brunswick High School, where plaintiff attended from 1988 until she graduated in 1991. Plaintiff and other students met informally in the cafeteria before the start of Wednesday classes. This group of students was known within the school as the Bible Club. East Brunswick tolerated these meetings, but gave the Bible Club no official recognition. The club was thus precluded from using the public address system, bulletin boards and other school facilities commonly used by other student groups. In 1988, when the Bible Club sought official recognition from school authorities, East Brunswick permitted extracurricular groups to be initiated by students and the school administration apparently had the power to approve or deny such requests. It chose to deny certification to the Bible Club.

In June 1989, East Brunswick adopted its initial version of Policy 6145, which governed extra-curricular activities. That policy provided, in pertinent part:

The Board of Education considers extra-curricular activities to be an integral part of the educational program. The Board requires that:

All clubs and other extra-curricular activities are related to the curriculum.

All clubs and other extra-curricular activities have a faculty adviser who supervises all meetings and other programs sponsored by the club.

All clubs and other extra-curricular activities and their advisers are approved by the Board before being permitted to function. The superintendent or his/her designee will recommend a list of clubs and other extra-curricular activities to the Board for approval in July or January of each school year.

Building principals shall establish procedures for students to use when requesting the formation of clubs and shall provide information about the procedures to students annually.

This version of Policy 6145 required that all student groups be "related to the curriculum" and tracked closely the language of section 4071(b), which triggers the Act only when student groups not related to the curriculum are permitted to use school facilities. Based on Policy 6145, East Brunswick again denied the Bible Club's request for recognition for the 1989-1990 school year.

In June 1990, the Supreme Court in Mergens set forth the definition of a "noncurriculum related student group" that would trigger the Act:

We think that the term "noncurriculum related student group" is best interpreted broadly to mean any student group that does not directly relate to the body of courses offered by the school. In our view, a student group directly relates to a school's curriculum if the subject matter of the group is actually taught, or will soon be taught, in a regularly offered course; if the subject matter of the group concerns the body of courses as a whole; if participation in the group is required for a particular course; or if participation in the group results in academic credit.

496 U.S. at 239-40, 110 S. Ct. at 2366. In response, East Brunswick once again amended Policy 6145 to track not only the language of the Act, but the Mergens opinion as well. It reads:

The Board of Education considers co-curricular activities and clubs to be an integral part of the educational program. The Board of Education, therefore, specifically reserves to itself the right to sponsor such clubs and activities as will further the educational goals of the district. Only such clubs and activities as are sponsored by the Board through the process hereinafter set forth will be permitted access to school facilities and personnel. The specific purpose and intent of this policy is to create a closed forum within the meaning and intent of 20 U.S.C. 4071 et seq.

Sponsorship by the Board shall consist of the approval of the club or activity together with the appointment of a faculty member who . . . shall promote, lead and participate in all meetings and programs of the club or co-curricular activity.

All co-curricular clubs and activities to be approved for Board sponsorship shall be directly related either to specific subject matter which is the subject of one or more courses offered in the school district, concern the body of courses offered as a whole, or provide experiences which are deemed by the school district to enhance understanding of a course or courses offered within the district curriculum. The Board may also, from time to time, approve and sponsor co-curricular activities including but not limited to intramural and interscholastic athletic or academic squads, student government and scholastic achievement organizations, and service activities.

The sponsorship of clubs and co-curricular activities shall arise only by formal action of the Board upon recommendation of the superintendent of schools. . . .

Suggestions for Board-sponsored clubs and activities will be accepted from all sources, including community, staff and students. No student-initiated co-curricular club or activity will be permitted except through the process outlined in this policy.

Following this amendment, several student organizations that had been certified apparently became casualties of the policy. These included the Audio Visual Club, the Bicycle Club, the Booster Club, Youth Ending Hunger and a club devoted to rock and new wave music. Many clubs not obviously associated with the East Brunswick curriculum, however, returned in the new school year, including Drama, Folio (Art), Folio (Literary), Institute for Political/Legal Education Club, Students Against Drunk Drivers, Students Against Violating the Environment, and the Key Club, a service organization associated ...


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