Steirer by Steirer v. Bethlehem Area School Dist.

• Decision Date: 15 March 1993
• Docket Number: No. 92-1359,92-1359
• Parties: , 81 Ed. Law Rep. 734 Lynn Ann STEIRER, a Minor, by Barbara and Thomas STEIRER, as Guardians and in Their Own Right; David Stephen Moralis, a Minor, by Thomas and Barbara Moralis, as Guardians, and in Their Own Right v. BETHLEHEM AREA SCHOOL DISTRICT; Thomas J. Dolusio; Ellen Pagano; Barbara Huth; Joseph McCarthy; John Spirk, Sr.; Ruth Prosser; Uriel Trujillo; Lawrence Kisslinger; Lynn Glancy; Robert Thompson. Barbara and Thomas Steirer, as Parents and Guardians of Lynn Ann Steirer, a Minor, and Thomas and Barbara Moralis, as Parents and Guardians of David Stephen Moralis, a Minor, Appellants.
• Court: U.S. Court of Appeals — Third Circuit

Page 989

987 F.2d 989

61 USLW 2576, 81 Ed. Law Rep. 734

Lynn Ann STEIRER, a Minor, by Barbara and Thomas STEIRER, as Guardians and in Their Own Right; David Stephen Moralis, a Minor, by Thomas and Barbara Moralis, as Guardians, and in Their Own Right v. BETHLEHEM AREA SCHOOL DISTRICT; Thomas J. Dolusio; Ellen Pagano; Barbara Huth; Joseph McCarthy; John Spirk, Sr. Ruth Prosser; Uriel Trujillo; Lawrence Kisslinger; Lynn Glancy; Robert Thompson Barbara and Thomas Steirer, as Parents and Guardians of Lynn Ann Steirer, a Minor, and Thomas and Barbara Moralis, as Parents and Guardians of David Stephen Moralis, a Minor, Appellants.

No. 92-1359.

United States Court of Appeals Third Circuit.

Argued Nov. 3, 1992.

Decided March 15, 1993.

Robert J. Magee, Eric R. Strauss (argued), Worth Law Offices, Allentown, PA, for appellants.

Michael I. Levin (argued), Cleckner & Fearen, Willow Grove, PA, for appellees.

Thomas A. Bowden, Blum, Yumkas, Mailman, Gutman & Denick, P.A., Baltimore, MD, for amicus-appellants Ass'n for Objective Law.

Richard McMillan, Jr., Barry E. Cohen, William D. Wallace, Stuart Woolman, Crowell & Moring, Washington, DC (Elliot Mincberg, Deanna Duby, People For the American Way, Washington, DC, of counsel), for amicus-appellees, Nat. School Boards Ass'n; Pennsylvania School Boards Ass'n; Com. of Pennsylvania, People For the American Way, Youth Service America, Nat. Service Secretariat, Maryland Student Service Alliance; Nat. Women's Law Center, Carnegie Foundation, Bloomfield Hills School Dist., American Alliance of Rights and Responsibilities.

A. David Baumhart, III, Hill Lewis, Birmingham, MI, for amicus-appellee Bloomfield Hills School Dist.

McCarter & English, Newark, NJ, for amicus-appellee Carnegie Foundation for Advancement of Teaching.

Before: SLOVITER, Chief Judge, STAPLETON and LAY ^*, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Chief Judge.

May a public high school constitutionally require its students to complete sixty hours of community service before graduation? On this issue of first impression for an appellate court, plaintiffs, two high school students and their parents, argue that the mandatory community service program compels expression in violation of the First and Fourteenth Amendments and constitutes

                involuntary servitude in violation of the Thirteenth Amendment.   The district court rejected both challenges.   We have jurisdiction under 28 U.S.C. § 1291 (1988)
                

I. FACTS AND PROCEDURAL HISTORY

The facts are not in dispute. On April 30, 1990, the Bethlehem Area School District, by a majority vote of its Board of Directors, adopted a graduation requirement that every public high school student, except those in special education classes, complete a total of sixty hours of community service during the student's four years of high school. These hours may be completed after school hours, on weekends, or during the summer. Students must complete this requirement through participation in a course entitled the "Community Service Program" (the Program), which requires them to "perform sixty (60) hours of unpaid service to organizations or experiential situations approved by the Bethlehem Area School District." App. at 182.

The stated goal of the Program is to "help students acquire life skills and learn about the significance of rendering services to their communities ... [and] gain a sense of worth and pride as they understand and appreciate the functions of community organizations." App. at 182. The four objectives of the Program are described in the Curriculum Course Guide as:

1. Students will understand their responsibilities as citizens in dealing with community issues.

2. Students will know that their concern about people and events in the community can have positive effects.

3. Students will develop pride in assisting others.

4. Students will provide services to the community without receiving pay.

App. at 193.

The Program is jointly administered by the high school principal, the district coordinator, and the school counselor. In addition, parents are "fully informed" of the Program and are expected to encourage their children to successfully complete the sixty hours of service, to encourage them to continue performing community service after completing the course requirements, to assist in identifying appropriate organizations or experiential situations, and to provide transportation to the placement site. App. at 186.

The Program maintains an extensive list of more than seventy approved community service organizations including, inter alia, AIDS Outreach, Bethlehem Special Olympics, Cedarbrook Nursing Home, Easton Area YWCA, Great Valley Girl Scout Council, Inc., Interfaith Peace Resource Center, Kemerer Museum, Lehigh County Meals on Wheels, Muscular Dystrophy Association, Planned Parenthood of North East Pennsylvania, The Experiment in International Living, Touchstone Theatre, and Wildlands Conservancy. App. at 191. The list of potential community service organizations is open-ended; students and parents are encouraged to submit the names of other potential organizations to the district coordinator for screening and approval. App. at 186, 191. Any organization that (i) "demonstrate[s] [its] intention to promote the welfare of the community"; (ii) does not "discriminate against any race, religion or sex"; and (iii) "provide[s] assurances that the[ ] organization is free from doctrinal motivation" can participate in the Program. App. at 191.

As an alternative to providing service to an approved community service organization, a student may choose to participate in an "experiential situation." App. at 192. This option allows a student to "develop [his or her] own individual community service experience." Id. This alternative experience requires parental approval, the recommendation of the school counselor, and verification by a responsible adult. Id. It may involve the arts, community special events, aid to the elderly, the handicapped or the homeless, emergency services, the environment, library/historical research, recreation activities, or tutoring. Id.

After completing the sixty hours of community service, the student must complete a written Experience Summary Form describing and evaluating his or her community Barbara and Thomas Steirer and Thomas and Barbara Moralis, individually and as parents and guardians of Lynn Ann Steirer and David Stephen Moralis, respectively, and their two children brought suit in federal district court challenging the constitutionality of the Program and seeking a permanent injunction against its enforcement. Although both minor plaintiffs have performed and intend to continue performing volunteer work on their own time, they object to being forced to engage in community service as a graduation requirement. The named defendants include the Bethlehem Area School District; Thomas J. Dolusio, in his official capacity as Superintendent of the Bethlehem Area School District; and the nine members of the Board of Directors of the Bethlehem Area School District in their official capacities.

                service activity. 1  Once the school counselor (i) certifies that the sixty hours of service were completed;  and (ii) reviews and approves the student's Experience Summary Form, the student receives half a unit of course credit and a grade of Satisfactory (S). 2  A student who does not satisfactorily complete the Program will not receive a high school diploma.
                

The parties filed cross-motions for summary judgment, agreeing that there were no genuine issues as to any material facts. On March 30, 1992, the district court granted defendants' motion and denied plaintiffs' motion. See Steirer v. Bethlehem Area School Dist., 789 F.Supp. 1337 (E.D.Pa.1992). Plaintiffs appealed. ³

II. DISCUSSION

The Bethlehem Area's mandatory community service program is not unique, ⁴ but we are aware of no federal appellate court decision addressing the constitutionality of such programs in public schools. ⁵ We exercise plenary review over a district court's grant of summary judgment. Wheeler v. Towanda Area School Dist., 950 F.2d 128, 129 (3d Cir.1991). We turn to

plaintiffs' challenges to the mandatory nature of the Program.

A. First Amendment

The district court granted summary judgment for defendants on plaintiffs' First Amendment claim on the ground that the community service required by the school district is non-expressive conduct. Plaintiffs contend on appeal that performing mandatory community service is expressive conduct because it forces them to declare a belief in the value of altruism. Proceeding on this premise, plaintiffs argue that heightened scrutiny should be applied and that the school board's reasons for making the program mandatory are not sufficiently compelling to outweigh the infringement of the students' First Amendment right to refrain from expressing such a belief.

The freedom of speech protected by the First Amendment, ⁶ though not absolute, "includes both the right to speak freely and the right to refrain from speaking at all." Wooley v. Maynard, 430 U.S. 705, 714, 97 S.Ct. 1428, 1435, 51 L.Ed.2d 752 (1977). As the Supreme Court has written:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628 (1943); see also Wooley, 430 U.S. at 713, 97 S.Ct. at 1434-35 (unconstitutional to "require an individual to participate in the dissemination of an ideological message by displaying it on his private property [automobile license plate] in a manner and for the express purpose that it be observed and read by the public").

To support their position that the required community service is expressive of the school district's...