Bender v. Williamsport Area School Dist.

Citation741 F.2d 538
Decision Date15 August 1984
Docket NumberNo. 83-3284,83-3284
Parties19 Ed. Law Rep. 805 Lisa BENDER; Morris Braggs, A Minor, By Mrs. Mary Braggs, His Guardian ad Litem; Toni Robb; Robin Kriner; Kerry Hunter, A Minor, By Mr. & Mrs. Carl Hunter, Her Guardians ad Litem; Brenda Kay Herzog, A Minor, By Mr. & Mrs. Louis Herzog, Her Guardians ad Litem; Shawn Seevers, A Minor, By Mr. & Mrs. Gerald Seevers, His Guardians ad Litem; Peter Strayer, A Minor, By Mr. & Mrs. Charles Strayer, His Guardians ad Litem; Bruce Brossman, A Minor, By Mr. & Mrs. Bruce Brossman, His Guardians ad Litem; and Denise Marshall, A Minor, By Mr. & Mrs. Dennis Marshall, Her Guardians ad Litem, and all others similarly situated, Appellees, v. The WILLIAMSPORT AREA SCHOOL DISTRICT; Oscar Knade, Superintendent of the Williamsport Area School District; Richard F. Eberhart, President of the Williamsport Area School Board; Janet C. Harris, Member of the Williamsport Area School Board; G. Kent Bitner, Member of the Williamsport Area School Board; Arthur E. Duncan, Member of the Williamsport Area School Board; Joyce S. Hershberger, Member of the Williamsport Area School Board; Richard L. Merk, Member of the Williamsport Area School Board; Gene Smith, Member of the Williamsport Area School Board; Kermit Smith, Member of the Williamsport Area School Board; John C. Youngman, Jr., Member of the Williamsport Area School Board; and Wayne A. Newton, Principal of the Williamsport Area High School. Appeal of John C. YOUNGMAN, Jr., one of the Defendants.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

John C. Youngman, Williamsport, Pa., for appellants.

Gerald W. Seevers, Williams & Seevers, Williamsport, Pa., Samuel E. Ericsson, Kimberlee W. Colby, Curran Tiffany, Springfield, Va., James M. Smart, Jr. (argued), Smart & Whitehead, Kansas City, Mo., for appellees.

Patrick Monaghan, Stephen F. McDowell, Catholic League for Religious and Civil

Rights, Milwaukee, Wis., Gerry J. Woods, Iovine & Woods, P.C., Philadelphia, Pa., for amicus curiae the Catholic League for Religious & Civil Rights in support of appellees.

Robert Reinstein (argued), Alan Lerner, Barry E. Ungar, Mann & Ungar, P.A., Philadelphia, Pa., for amici curiae American Jewish Congress and Anti-Defamation League of B'Nai Brith in support of appellants; Marc Stern, New York City, Fred J. Berg, Philadelphia, Pa., Justin J. Finger, Jeffrey Sinensky, Ruti Teitel, New York City, of counsel.

John W. Baker, Baptist Joint Committee on Public Affairs, Washington, D.C., for amici curiae Baptist Joint Committee on Public Affairs & The National Ass'n of Evangelicals in support of appellees.

Lee Boothby, Boothby, Huff & Yingst, Berrien Springs, Mich., for amicus curiae Americans United for Separation of Church and State in support of appellants.

William B. Ball, Phillip J. Murren, Sandra Wise, Ball & Skelly, Harrisburg, Pa., for amici curiae Mr. & Mrs. Dale Bluman et al. in support of appellees.

Before ADAMS, and GARTH, Circuit Judges, and BROTMAN, District Judge. *


GARTH, Circuit Judge:

This appeal requires us to resolve the tension between the first amendment free speech claim of high school students meeting in an activity devoted to prayer, and a school district's claim that the Establishment Clause--also found in the first amendment--overrides free speech guarantees in the context of a "limited forum." We resolve this conflict between the two constitutional guarantees in favor of the Williamsport Area School District.

Plaintiffs-Appellees Lisa Bender, et al., are or were students at the Williamsport Area High School. It was their desire to form a student organization within the high school, which would be devoted to prayer and other religious activities, and which would meet during the regularly scheduled student activity period. The school officials, fearing violation of the Establishment Clause of the first amendment, denied the students permission to meet.

The students brought this suit for declaratory and injunctive relief under 42 U.S.C. Sec. 1983, alleging violation of their constitutional rights of free speech and free exercise of religion. After considering the affidavits, stipulations, and depositions of the parties, the district court granted summary judgment in favor of the school district and against the students on the free exercise claim. 1 Relying, however, on Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981), the district court agreed with the students that their free speech rights had been abridged, and that, under these circumstances, the Establishment Clause did not provide a compelling state interest to justify that abridgement. The court therefore granted summary judgment in favor of the students and against the school district on the free speech claim. 2 Bender v. Williamsport Area School District, 563 F.Supp. 697 (M.D.Pa.1983). We conclude that the Establishment Clause concerns expressed by the school district must prevail. We therefore reverse.


Because this appeal comes to us from the grant of summary judgment, and given the crucial role which the particular

facts play in every first amendment analysis, special care must be taken in reciting the factual setting. Although, in several respects, the record below could have been more fully developed, we agree with the district court that there are no material disputes of fact that would preclude consideration of the merits of this case in the context of summary judgment. 3

A. The Proposed Activity

Plaintiffs, Lisa Bender, et al. (hereinafter described collectively as "the students") are or were enrolled 4 at the Williamsport Area High School in Williamsport, Pennsylvania. They sought to organize a group known as "Petros," which would "meet for the purposes of [students] aiding each other in his social, emotional and intellectual personal growth and development by prayer, the application of God's Holy Word to their problems and sharing of personal experiences." Complaint p 31, App. at 7. The purpose was also stated to school authorities in the group's application for approval:





The organization will be a non-denominational prayer fellowship. Participation will be voluntary and open to all students.


The purpose of the organization will be to promote spiritual growth and positive attitudes in the lives of its members.


Selection of leaders will be by democratic election. The leaders will be responsible for directing the meetings and coordinating activities in a manner that will carry out the purpose of the organization.


Regular meetings of the organization will be held on school premises during the Tuesday and Thursday morning activity periods. They will include Scripture reading, discussion, prayer and other activities which may be of interest to the group.


Meetings of the organization will be supervised by a faculty advisor. Student attendance may be verified by the signing of a roster.

App. at 87 ("Proposal for a New Student Organization"). The students asked permission to meet during the school's regularly scheduled activity period. They agreed that they would not use the bulletin boards, newspaper, or public address systems to promote their meetings. App. at 401 (Affidavit of Lisa Bender).

Petros was allowed to hold one organizational meeting, at which approximately forty-five students were present. During the meeting, passages of scripture 5 were read, and students who wished to do so, prayed. After this first session, however, the school administration withheld permission for further meetings pending investigation as to their legality. After consultation with the school's attorney, the Williamsport School Board denied the student's request for permission to meet. The President of the School Board wrote to Bender, stating:

The solicitor [has] advised the Board that to approve your proposal would be a violation of existing case law and therefore, an improper action. The Board decided, therefore, to deny your appeal.

Please be assured that neither the School Board nor the Administration regard the proposed prayer fellowship group as being unworthy. Present law simply does not permit public schools to authorize or support religious activities on school property.

App. at 235 (Letter of R.F. Eberhart).

B. The Activity Period

The activity period at Williamsport Area High School is held during a thirty minute time slot regularly provided on Tuesdays and Thursdays, during which student groups may conduct meetings. 6 The school day begins at 7:45 a.m. when all students must be in their homerooms. School supervision of students begins the moment they enter the school premises. App. at 356 (Affidavit of Principal Wayne Newton). The activity period starts at 7:57 a.m., after attendance has been taken in homeroom and the school day has begun. Those students who do not participate in a club may study in the library, visit the school's computer station, examine career or college placement materials, or simply remain in their home rooms until the next class period begins. Participation in activities is completely voluntary, although each student must be on school grounds and accounted for during the activity period. Pennsylvania law requires that students participate in a minimum amount of instruction per year, which is variously calculated as: (1) 180 school days per year, with each day consisting of seven hours, minus 1 1/2 hours for lunch and breaks; (2) a school week consisting of 27 1/2 hours of instruction; or (3) 990 hours of instruction each year. Pa.Stat.Ann. tit. 24, Sec. 15-1504 to 1504 (Purdon Supp.1983). 7 App. at 366 (affidavit of Principal Wayne Newton).

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