May v. Evansville-Vanderburgh School Corp.

Decision Date28 May 1986
Docket NumberEVANSVILLE-VANDERBURGH,No. 85-2234,85-2234
Citation787 F.2d 1105
Parties, 31 Ed. Law Rep. 727 Mary MAY, Plaintiff-Appellant, v.SCHOOL CORP., et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Thomas S. Neuberger, Wilmington, Del., for plaintiff-appellant.

Robert P. Musgrave, II, Kightlinger, Young, Gray & DeTrude, Jeffrey R. Frank, Frank & Collins, Evansville, Ind., for defendants-appellees.

David J. Emmert, amicus curiae, for Indiana School Boards Ass'n.

Marc D. Stern, Lois C. Waldman, Ronald A. Krauss, New York City, Geoffrey Stone, Sylvia M. Neil, Chicago, Ill., amicus curiae, for American Jewish Congress.

Before POSNER, FLAUM, and EASTERBROOK, Circuit Judges.

POSNER, Circuit Judge.

Harper Elementary School (kindergarten through fifth grade) is a public school in southern Indiana with about 350 students and 30 teachers (including teachers' aides). Early in 1981 Mary May and two other teachers--all three evangelical Christians--began meeting every Tuesday morning at the school to pray, sing hymns, and discuss the Bible. Four or five other teachers later joined the group. The meetings were held between 7:25 and 7:45 a.m., before the school day began and before the teachers were required to report to their duty stations. Students were not allowed in the building this early and apparently were unaware of the meetings. In fact even the school administration didn't find out about the meetings until 1983, when a new principal started a teachers' newsletter and Mrs. May asked him to include a notice of the meetings in it. He not only refused but after consulting with his supervisors ordered the meetings to stop, and was backed up in this decision by the school board.

Mrs. May has sued the board, its members, and the superintendent of the school district under section 1 of the Civil Rights Act of 1871, now 42 U.S.C. Sec. 1983, seeking to enjoin the ban on religious meetings and to recover $300,000 in damages. The only ground she has pressed is that the ban violates her constitutional right of free speech. Although freedom to express one's religious convictions (as distinct from freedom to debate religious doctrine, which was not the object of Mrs. May's meetings) might seem to nestle more comfortably within the First Amendment's free exercise of religion clause than its free speech clause, the Supreme Court has held that restrictions on devotional speech are actionable under the free speech clause. Widmar v. Vincent, 454 U.S. 263, 269 and n. 6, 102 S.Ct. 269, 274 and n. 6, 70 L.Ed.2d 440 (1981). Mrs. May makes no free exercise claim.

After some discovery, both sides moved for summary judgment. The district judge granted the defendants' motion and dismissed the complaint, finding that, "Although no written policy is evident, it appears from the record that the school board and the superintendent of schools had consistently applied a policy prohibiting use of school facilities for religious activity. At all times pertinent to this complaint, no religious meetings occurred on school property, at least to the knowledge of school administrators, and no meetings of teachers occurred at Harper School except for those necessary to the operation and management of the school.... If other teacher groups were permitted to meet on a variety of religious and non-religious subjects in the kind of formalized way Mrs. May's group met, there might be an argument that a public forum, or at least a limited public forum, existed in this case and that the exclusion of Mrs. May's group was some denial of constitutional rights. The record reveals no such scenario." 615 F.Supp. 761, 763-64 (S.D.Ind.1985).

Mrs. May makes two arguments on appeal. The first is that as an employee of the school she has a right to exercise free speech on school premises provided she does not disrupt the school's activities; since the religious meetings took place before school began and the students neither participated in the meetings nor (so far as anyone knows) were even aware of them, there was no disruption. Her second argument is that even if the school authorities could have forbidden meetings not directly related to school business, they didn't do so. By allowing meetings on any subject except religion, they made the school a "public forum" between the time when it opened for teachers and the time the teachers had to report to their duty stations; and they could not arbitrarily exclude one subject of speech--religion--from the forum. To this the defendants reply that even if they created a public forum (which they deny), they were justified in excluding religious discussion from it, because to allow it would have violated the establishment clause of the First Amendment.

Mrs. May's first argument asks us to recognize a public employee's right to use his (or her) employer's premises for meetings on topics of public importance such as religion or politics. Her reply brief summarizes the nature and scope of the right contended for: "In essence, Plaintiff's theory is as follows. Regardless of the existence of a public forum, a teacher legitimately in the work place has an absolute right [by virtue of the free speech clause, the only constitutional provision on which she relies] to engage in free time religious speech and worship unless such speech materially and substantially interferes with a school's ability to fulfill its tasks. This right derives from the worker's status, as a public employee in a free society, which permits her to use leisure time as she chooses while properly in the work place." Mrs. May grounds this right in the principle that public employees have rights of free speech to the extent compatible with the effective performance of their jobs, see, e.g., Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Knapp v. Whitaker, 757 F.2d 827 (7th Cir.1985)--a principle that would indeed prevent the school authorities from forbidding Mrs. May to advocate, in her own time and in other places, political or religious opinions of which they disapproved, unless they could show that such advocacy prevented her from doing her job. But these cases do not address the question whether a public employer must allow its employees to use its premises for meetings, whether before or during or after work, on matters personal to the employees and unrelated to the employer's business. Piarowski v. Illinois Community College Dist. 515, 759 F.2d 625, 629 (7th Cir.1985). The plaintiff in Pickering was a teacher who was fired for mailing a letter to a newspaper criticizing school officials for their handling of the school district's finances. In Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), the questionnaire for which the plaintiff was fired was probably circulated on the employer's premises but nothing is made of this in the opinions; the employer's defense (so far as relevant here) was that circulating the questionnaire was insubordinate and therefore disruptive. Our recent case of Baz v. Walters, 782 F.2d 701, 708 (7th Cir.1986), is similar.

Mrs. May certainly could not command the school board to keep the Harper School open at night free of charge so that she could hold prayer meetings or any other sort of meeting there without having to pay rent. If she had such a right it would mean that public employees had much greater rights of free speech than the rest of the community. They would have the guaranteed free use of their employers' premises for their speeches and meetings while private employees would have access for such purposes neither to those premises nor to their own employers' premises, except in the unlikely event that a private employer voluntarily permitted employees to use his premises for meetings unrelated to their work for him. This case is less extreme than our hypothetical case, however, because Mrs. May is not asking that the school be opened earlier or closed later. The school has to be open to teachers before the students are allowed into the building, to make sure that all the teachers are at their duty stations when the students arrive. The premises are not fully utilized during this interval and all Mrs. May wants to do is to take up some of the slack, as it were, by using for prayer, hymns, and religious discussion a classroom or other room (most of the meetings occurred in the guidance counselor's office) not otherwise used during this time for anything at all. The marginal cost of her use is (she might argue) zero.

But the objection to forcing an employer to allow his premises to be used for meetings by employees has deeper roots than the marginal costs in electricity or maintenance that such use might impose. There is a potential distortion of the market in ideas if public employees are given greater rights of free expression than private employees by having a right of free access to their employers' premises for meeting purposes; and although the practical significance of such access may be small in this case as we shall see, it could be great in other cases. There is also a potential distortion of the market in ideas if employers are involuntarily identified with particular views by being compelled to sponsor meetings at which those views are advocated.

Regarding the first point, we acknowledge that cases such as Pickering and Connick give public employees greater rights of free speech than private employees have, but this is not just for the formalistic reason, which would be as applicable to the present case as to those cases, that the First Amendment restricts only state action, and not private action. The behavior of public enterprises is a political question; political speech has been placed at the top of the hierarchy of speech protected by the First Amendment; and since the employees of public enterprises have insights...

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