Truth v. Kent School Dist.

• Decision Date: 24 August 2007
• Docket Number: No. 04-35876.,04-35876.
• Citation: 499 F.3d 999
• Parties: TRUTH, an unincorporated association; Sarice Undis, a minor, by and through her father, Larry Undis; Julianne Stewart, a minor, by and through her parents, Paul and Anna Stewart, Plaintiffs-Appellants, v. KENT SCHOOL DISTRICT; Barbara Grohe, Superintendent of Kent School District; Mike Albrecht, Principal of Kentridge High School; Eric Anderson, Assistant Principal of Kentridge High School, in their official capacities, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

499 F.3d 999

TRUTH, an unincorporated association; Sarice Undis, a minor, by and through her father, Larry Undis; Julianne Stewart, a minor, by and through her parents, Paul and Anna Stewart, Plaintiffs-Appellants, v. KENT SCHOOL DISTRICT; Barbara Grohe, Superintendent of Kent School District; Mike Albrecht, Principal of Kentridge High School; Eric Anderson, Assistant Principal of Kentridge High School, in their official capacities, Defendants-Appellees.

No. 04-35876.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 27, 2006.

Filed August 24, 2007.

Robert H. Tyler, Alliance Defense Fund, Murrieta, CA, for the plaintiffs-appellants.

Michael B. Tierney, Mercer Island, WA, for the defendants-appellees.

Jane M. Whicher, Port Townsend, WA, for amicus American Civil Liberties Union.

Sara J. Rose, Washington, D.C., for amicus Americans United for Separation of Church and State.

David F. McDowell, Los Angeles, CA, for amicus Anti-Defamation League.

Appeal from the United States District Court for the Western District of Washington; Marsha J. Pechman, District Judge, Presiding. D.C. No. CV-03-00785-MJP.

Before: J. CLIFFORD WALLACE, KIM McLANE WARDLAW, and RAYMOND C. FISHER, Circuit Judges.

WALLACE, Senior Circuit Judge:

Appellants Truth, Sarice Undis, and Julianne Stewart (collectively, Truth) appeal from a summary judgment in favor of the Kent School District and other appellees (collectively, District). Truth alleges violations of the Equal Access Act (the Act), the First Amendment rights of free speech and expressive association, the Free Exercise Clause, the Establishment Clause, and the Equal Protection Clause. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

I.

This appeal arises from Truth's attempt to form a student club at Kentridge High School (Kentridge), which is part of the Kent School District. Under the relevant policies at Kentridge, "[u]nchartered clubs are not permitted to exist." To obtain a charter, students must submit a proposed charter to the Associated Student Body (ASB) Council and secure approval.

Beginning in the fall semester of 2001, appellants Undis, then a junior, and Stewart, then a sophomore, attempted to form a Bible club at Kentridge. Undis and Stewart submitted a "Club Charter Application" (first charter) for official recognition as an ASB organization in September 2001. This first charter indicated that the club's name was to be "Truth" and that the purpose of the organization was to "have a Bible study to encourage and help become better people with good morals." Under the section "Membership Criteria," the first charter indicated that the group was to be "[o]pen to anyone." The charter also proposed that it would designate a "quote of the week for announcement" and "once a month decorate [the] school with a theme."

The ASB Council discussed Truth's first charter at a September 2001 meeting, and several students objected to chartering Truth. The ASB Council decided to consult with the Assistant Principal, appellee Eric Anderson. Anderson and appellee Mike Albrecht, Principal of Kentridge, later told Undis that they would speak with the school's attorney regarding the legality of granting Truth ASB recognition. Albrecht stated that "the problem with the September 2001 proposal was that it involved broadcasting a weekly Bible quote over the school's public address system and monthly decoration of the school in a biblical theme."

No action was taken on the first charter for the remainder of the 2001-02 school year. During that time, Undis asked Anderson to make a decision on Truth's application on at least ten occasions, to no avail. Sometime in the spring semester of 2002, all ASB clubs were instructed to resubmit their charters. The record does not reveal any further activity on Truth's application during the summer and fall semesters of 2002.

During this period, we decided Prince v. Jacoby, which involved a request by a Bible club for ASB recognition in a different Washington school district. 303 F.3d 1074(9th Cir.2002). On January 7, 2003, an attorney for Truth, Robert Tyler, wrote to Albrecht stating that it was "constitutionally imperative that [Kentridge] grant [appellants'] proposed Bible Club treatment and rights equal to all other noncurriculum clubs." The letter also insisted that Kentridge "immediately adhere to the requirements of the Equal Access Act and the First Amendment," and threatened litigation if Kentridge did not comply.

On January 30, 2003, Tyler sent a second letter to Michael Harrington, counsel for the Kent School District. Tyler requested the forms required to establish an ASB club, and threatened litigation if Truth's charter was not approved by February 4.

On February 2, as requested by Anderson, Undis and Stewart submitted a new application (second charter). The second charter removed the quote-of-the-week and monthly theme decoration provisions of the first charter. The club's stated purpose was now to "provid[e] a biblically-based club for those students interested in growing in their relationship with Jesus Christ." Although membership would be open to all students, the second charter restricted voting membership to "members professing belief in the Bible and in Jesus Christ." Officers would also be required to "believe in and be committed to biblical principles."

After a third letter to Harrington from Tyler, the second charter was discussed at an ASB Council meeting on March 27. Some students expressed disapproval of the club's name, suggesting that it "implies that every other religion at Kentridge is a lie." Some council members also expressed concerns that granting the charter would violate "[c]hurch and state" and that the voting membership should be open to everyone. Additionally, members suggested that students could go to "Young Life," a non-ASB recognized organization that met on Kentridge's campus after school hours. The minutes of the March 27 meeting reveal that the question of whether to approve the second charter was discussed for twenty minutes. No vote was taken.

The second charter was next addressed at an ASB Council meeting on April 1. After a brief clarification on the role of the advisor for the club, the minutes show that Anderson stated that if the ASB Council voted to approve the charter, he would consult the District's attorneys and Kentridge would make a final decision on approving the charter. The Counsel voted eleven to six against approval of Truth's second charter.

On April 3, Truth filed a complaint in the United States District Court for the Western District of Washington, alleging that defendants had violated the Act, as well as the First Amendment rights of free speech and expressive association, the Free Exercise Clause, the Establishment Clause, and the Equal Protection Clause. Truth sought injunctive and declaratory relief as well as nominal damages.

On April 9, Anderson sent Stewart a letter informing her of her right to resubmit Truth's application for ASB club recognition: "As was discussed at the ASB meeting on March 28th, by making minor changes to Article[s] I and III of the proposed Constitution for your club, you will address the points raised." Article I sets forth the name of the club and Article III contains the voting membership and officer restrictions. Anderson advised Stewart to "be prepared to resubmit by the April 25th ASB Meeting." Under the Kentridge ASB Constitution, "[a]ny rejected charters must be resubmitted within two weeks of rejection with the required changes made or the charter shall be permanently rejected."

Stewart and Undis submitted the third charter on April 24. The third charter maintains the proposed name "Truth." However, it divides the membership into three categories: voting members, nonvoting members, and attendees. Meetings are open to everyone. But the "privilege of membership is contingent upon the member complying in good faith with Christian character, Christian speech, Christian behavior and Christian conduct as generally described in the Bible." The charter application also lists a "true desire to ... grow in a relationship with Jesus Christ" under the "Membership Criteria" heading. In order to be a voting member or officer, students are required to sign a "statement of faith." The statement of faith requires the person to affirm that he or she believes "the Bible to be the inspired, the only infallible, authoritative Word of God." A member must also pledge that he or she believes "that salvation is an undeserved gift from God," and that only by "acceptance of Jesus Christ as my personal Savior, through His death on the cross for my sins, is my faith made real." Other than the ability to call oneself a "member," there is no difference between the rights of non-voting members and attendees.

The third charter was discussed at the April 25 ASB Council meeting. The ASB Council again objected to the name, selectivity provisions, and the presence of religion in school. The council voted nineteen to zero to deny approval of the charter, with one member undecided. The minutes give four reasons why the charter was not accepted: 1) "Name," 2) "Pledge to vote," 3) "Segregating," 4) "Religious club in school."

On May 6, Tyler wrote to the Kent School District's counsel stating that it was his "understanding from the ASB Constitution that this rejection by the ASB is the final decision." The letter also provided that Tyler "was unable to locate any rights to appeal the decision of the ASB," but that if there were "a right to appeal the decision of the ASB," he asked that the letter "serve as a formal request for appeal."

Anderson advised Undis and Stewart in a May 12 letter "that pursuant to Kent School District Policy 2340, [they had] the ability to discuss this matter with Mr. Albrecht," and mentioned the possibility of discussions with the District superintendent or the ombudservices office. Although Tyler's ...