98 F.3d 1530 (7th Cir. 1996), 95-3384, Muller by Muller v. Jefferson Lighthouse School

Docket Nº:95-3384, 95-3482.
Citation:98 F.3d 1530
Party Name:Andrew J. MULLER, a minor child, by his parents and next friends, Ronald G. MULLER and Ann H. Muller, Plaintiffs-Appellants, v. JEFFERSON LIGHTHOUSE SCHOOL, Racine, Wisconsin, Steven Miley, in his official capacity as Principal of Jefferson Lighthouse School, Racine, Wisconsin, and Racine Unified School District, Racine, Wisconsin, Defendants-Appel
Case Date:October 30, 1996
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 1530

98 F.3d 1530 (7th Cir. 1996)

Andrew J. MULLER, a minor child, by his parents and next

friends, Ronald G. MULLER and Ann H. Muller,




Miley, in his official capacity as Principal of Jefferson

Lighthouse School, Racine, Wisconsin, and Racine Unified

School District, Racine, Wisconsin, Defendants-Appellees.

Nos. 95-3384, 95-3482.

United States Court of Appeals, Seventh Circuit

October 30, 1996

Argued March 26, 1996.

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[Copyrighted Material Omitted]

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Frederick Herbert Nelson, Mathew D. Staver, argued, Nicole A. Kerr, Staver & Associates, Orlando, FL, for Andrew J. Muller, Ronald G. Muller and Ann H. Muller.

Dayten P. Hanson, Linda Stover Isnard, Gilbert J. Berthelsen, Terrance L. Kallenbach, argued, Capwell and Berthelsen, Racine, WI, for Jefferson Lighthouse School, Steven Miley and Racine Unified School District.

Before ESCHBACH, MANION, and ROVNER, Circuit Judges.

MANION, Circuit Judge.

Fourth-grader Andrew Muller requested from his elementary school's principal permission to hand out at school invitations to a religious meeting to be held at the church his family attends. After some dispute as to who had responsibility, the principal ultimately said no, basing his decision on the terms of the school district's Code of Student Responsibilities and Rights. The Mullers sued in federal court for declaratory and injunctive relief, claiming the school district's Code violated the constitution, most notably Andrew's rights under the free speech and free exercise of religion clauses of the First Amendment. The district court declared the elementary school a non-public forum and upheld the facial validity of all of the challenged Code provisions except a requirement that the handout contain a statement disclaiming school endorsement. We reverse the district court only on its decision on the disclaimer and otherwise affirm.


Andrew Muller attends Jefferson Lighthouse Elementary School, one of 23 elementary schools in the Racine Unified School District in Racine, Wisconsin. On January 19, 1995, Andrew, then in fourth grade, asked his teachers for permission to hand out invitations to a meeting of a group called AWANA ("Approved Workmen Are Not Ashamed" 1) being held at his church. AWANA members meet throughout the country for small group Bible studies and Christian fellowship. The Mullers consider the extension of such invitations an "effort to evangelize for the Gospel of Jesus Christ" and "an exercise of sincerely-held beliefs." According to the Mullers, Andrew sought only to distribute the invitations during non-instructional times. But the record indicates Andrew's teacher and principal may have thought (initially at least) that Andrew wanted permission to hand out the fliers during class.

Andrew's teachers sent him to the principal's office to obtain permission. According to the Mullers, the principal, defendant Steven Miley, told Andrew he could not distribute the invitations because they were religious. Defendants deny this. They maintain Miley told Andrew he could not distribute the AWANA fliers to his class

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because they were neither school-supported nor directly related to school programs. According to defendants, the next morning at 8:00 a.m. Miley received a telephone call from a representative of a group in Florida called "Liberty Counsel" (now the Mullers' attorneys) inquiring about the school and the district's policies regarding distribution of religious materials. Miley referred the caller to Frank Osimitz, Director of School Operations at the district's central office, and to Frank Johnson, the district's legal counsel. Miley received a similar call from Liberty Counsel on February 3, 1995.

The Mullers claim that Ann Muller, Andrew's mother, contacted Miley to clarify whether her son could distribute the invitations. Miley referred her to Osimitz at the district office, allegedly stating "I won't let Frank [Osimitz] pass this one back on my lap." But pass Osimitz did. On January 27, 1995, Mrs. Muller called Osimitz but was told the matter lay with principal Miley. Mrs. Muller returned to Miley's office on February 6, 1995 and inquired into the school's policy regarding materials like the AWANA flier. Miley asked about the contents of the flier and was given a copy. The parties differ as to what happened next.

According to defendants, Miley told Mrs. Muller that if the material was not related to a school program, a student could not hand the information out to his class. Mrs. Muller told Miley that her son received points in the AWANA group for bringing guests to its meetings but that previous guests had not anticipated the Christian nature of the program. The fliers would help prevent confusion by clarifying the nature of the activity. Miley said Andrew could give fliers to several of his friends but that he could not distribute them to his entire class. Asked what would have happened if Andrew had passed out the fliers without permission, Miley allegedly responded that nothing would have occurred since he likely would not have known, but that if he had found out he would have told Andrew he should have obtained permission first and should do so in the future. Miley also informed Mrs. Muller that she could pursue the matter further with Osimitz or Frank Johnson (district counsel) at the district office. Defendants claim that on February 9 or 10, 1995, Mrs. Muller left a telephone message on Miley's answering machine requesting his policy on distributing materials and a written response to Andrew's request. In a letter dated February 10, 1995, Miley responded, stating it was his "policy that materials distributed at Jefferson Lighthouse School would relate to Jefferson Lighthouse School projects and programs," but also granting permission for Andrew to distribute information to "specific friends."

The Mullers tell a somewhat different story. They claim that at his office on February 6, 1995, Miley said he would like to allow Andrew to distribute his invitation but could not because he would be forced to allow distribution of materials from other churches, which he did not want. Mrs. Muller asked Miley why, in that case, parents were allowed to receive information from the YMCA, Boy Scouts, Skatetown, and other sources. Miley said those distributions had been approved by the district's central office and again referred Mrs. Muller to Frank Osimitz. Mrs. Muller indicated she had already spoken to Osimitz and had been told it was Miley's call whether to allow distribution of literature at the school. Miley disagreed, saying it was actually Osimitz's decision because all distributions not concerned with school business had to receive approval from the central office. Miley said he did not want to allow distribution of the invitation but that it would ultimately be up to Osimitz. He was concerned that if he allowed Andrew to distribute his fliers, "ten other churches" would want similar privileges. According to the Mullers, the next day Mrs. Muller again went to see Osimitz at the central office. Osimitz told her it was not his problem and that he would only get involved if the distribution concerned the whole district rather than one school. Mrs. Muller learned that Miley had contacted Chuck Melcher, the school's curriculum and instruction department head, and that Melcher had in turn contacted Osimitz about the matter but he had refused to decide the issue. She also learned that Melcher had contacted Frank Johnson of the district's legal department. Osimitz then asked Mrs. Muller for a copy of the invitation

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to give to Johnson for review. Osimitz said Johnson would contact her within a week or two, but the Mullers claim he never did. Two days later, Mrs. Muller again visited Miley seeking permission. According to the Mullers, Miley told her it was his position that Andrew's invitation did not deal with Jefferson Lighthouse School and thus required permission from Osimitz. Miley allegedly said everything would have been fine if Andrew had just handed out the invitations and not been caught, and that Andrew could still distribute them to his friends provided he did not get caught. Mrs. Muller says she objected to the dishonorable message that would send to Andrew, a message contrary to the morals she and her husband were trying to instill in their son.

On February 20, 1995, Mrs. Muller sent a letter to principal Miley, which was also addressed to Osimitz and Johnson, restating her version of the events and formally objecting to the provisions of the school board's policy concerning non-school-sponsored publications. The Mullers did not file an official complaint with the district appealing the principal's decision. A formal Complaint Form is included with the Code of Student Responsibilities and Rights (the district policy governing, among other things, distribution of handbills) for appeals to the district from the decisions of principals. Instead, on April 25, 1995, the Mullers filed a complaint in federal district court against Jefferson Lighthouse School, Steven Miley as principal, and the Racine Unified School District seeking a declaratory judgment and preliminary and permanent injunctive relief. The complaint alleged that Sections 6144.11 2 and 6144.12 3 of the Racine Unified School District Code of Student Responsibilities and Rights (1994-95) on their face and as applied by Principal Miley violated Andrew's "Free Speech, Free Exercise of Religion and Equal Protection rights ... guaranteed under the First and Fourteenth Amendments to the United States Constitution and the Religious Freedom Restoration Act of 1993 and constitute a violation of the First Amendment's Establishment Clause."

Characterizing the school as a nonpublic forum, the district court applied a reasonableness...

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