Ceniceros By and Through Risser v. Board of Trustees of the San Diego Unified School Dist.

• Citation: 106 F.3d 878
• Decision Date: 28 September 1995
• Docket Number: No. 94-55257,94-55257
• Parties: 116 Ed. Law Rep. 82, 97 Cal. Daily Op. Serv. 870, 97 Daily Journal D.A.R. 1313 Melanie CENICEROS, a minor, By and Through her Guardian Ad Litem and Mother Rose RISSER; Rose Risser, Guardian Ad Litem and Mother of Melanie Rose Ceniceros, Plaintiffs-Appellants, v. BOARD OF TRUSTEES OF THE SAN DIEGO UNIFIED SCHOOL DISTRICT, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 878

106 F.3d 878

116 Ed. Law Rep. 82, 97 Cal. Daily Op. Serv. 870,

97 Daily Journal D.A.R. 1313

Melanie CENICEROS, a minor, By and Through her Guardian Ad Litem and Mother Rose RISSER; Rose Risser Guardian Ad Litem and Mother of Melanie Rose Ceniceros, Plaintiffs-Appellants, v. BOARD OF TRUSTEES OF THE SAN DIEGO UNIFIED SCHOOL DISTRICT Defendant-Appellee.

No. 94-55257.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 13, 1995.

Filed Sept. 28, 1995.

Withdrawn Feb. 6, 1997.

Decided Feb. 6, 1997.

Michael S. Paulsen, University of Minnesota Law School, Minneapolis, MN, and Gerald W. Hokstad, Hurst & Hokstad, Solana Beach, CA, The Rutherford Institute, for plaintiffs-appellants.

Jose A. Gonzales, San Diego Unified School District, San Diego, CA, for defendant-appellee.

Anthony J. Steinmeyer and Lowell V. Sturgill, Jr., United States Department of Justice, Washington, DC, for United States as amicus curiae.

Steven T. McFarland and Kimberlee Wood Colby, Center for Law & Religious Freedom, Annandale, VA, for Christian Legal Society, National Council of Churches of Christ, National Association of Evangelicals, and Christian Life Commission of the Southern Baptist Convention as amicus curiae.

Jay Alan Sekulow, American Center for Law and Justice, Virginia Beach, VA, for Student Coalition for Free Speech as amicus curiae.

Appeal from the United States District Court for the Southern District of California, Gordon Thompson, Jr., District Judge, Presiding. D.C. No. CV-93-01015-GT.

Before LAY, ^* BRUNETTI and RYMER, Circuit Judges.

Opinion by Judge BRUNETTI; Dissent by Judge LAY.

ORDER

The opinion filed July 13, 1995, is withdrawn.

OPINION

BRUNETTI, Circuit Judge:

Melanie Rose Ceniceros sued the Board of Trustees of the San Diego School District (the District) seeking declaratory and injunctive relief and damages. Her complaint alleged that, by denying her religious club the opportunity to meet during lunch as other clubs were allowed to, her high school, University City High School (UCHS), violated her rights under the Equal Access Act (Act), 20 U.S.C. §§ 4071-74 (1990), and the Free Speech and Free Exercise Clauses of the Constitution. The parties brought cross-motions for summary judgment. The district court granted the District's motion and denied Ceniceros's. We have jurisdiction under 28 U.S.C. § 1291, ¹ and we reverse.

I.

University City High School is a public secondary school located in the San Diego Unified School District which receives federal financial assistance. Classroom instruction begins at 7:25 a.m. All students at UCHS have the same lunch period, from 11:30 a.m. to 12:10 p.m. daily, during which time they are free to leave the school campus. No classes are held during lunch. Classroom instruction resumes at 12:15 p.m. and ends at 2:10 p.m.

In December 1992, Ceniceros, then a senior at UCHS, asked the vice-principal if she could form a student religious club that would meet in an empty classroom during the school lunch period. The vice-principal allowed the club's formation, but denied the request to use classrooms during the lunch period.

Several other voluntary, noncurriculum related student groups and clubs meet during the lunch period. These include the African American, African Friends, Hackey Sac, and Surf clubs, the California Scholarship Federation, the Movimiento Estudiantil Chicano Aztlan, and the Organization for Nature Conservation. It is unclear from the record whether these other groups meet in classrooms or at some other location on school premises.

Ceniceros filed the present action seeking declarative and injunctive relief and damages for violation of the Act and her rights under the Free Speech and Free Exercise Clauses of the First Amendment. The parties brought cross-motions for summary judgment. The district court granted the District's motion on all counts, and denied Ceniceros'. Ceniceros timely appeals grant of the District's motion. ²

II.

All issues presented are issues of law reviewed de novo. Tipton v. University of Hawaii, 15 F.3d 922, 923 (9th Cir.1994).

III.

The statutory issue in this case is whether UCHS' lunch hour is "noninstructional time" within the meaning of the Equal Access Act. The Act provides, in pertinent part:

It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of religion, political, philosophical, or other content of the speech at such meetings.

20 U.S.C. § 4071(a). A "limited open forum" exists "whenever [a] school grants an offering to or opportunity for one or more noncurriculum related student groups to meet on school premises during noninstructional time." 20 U.S.C. § 4071(b). The Act in turn defines noninstructional time as "time set aside by the school before actual classroom instruction begins or after classroom instruction ends." 20 U.S.C. § 4072(4).

The parties agree that: UCHS is a public secondary school receiving federal funding; other noncurricular clubs meet during lunch hour; and Ceniceros' noncurricular club possesses the characteristics that bring it within the Act's "safe harbor" provision, 20 U.S.C. § 4071(c). The District argues, however, that its denial of lunchtime access to Ceniceros did not violate the Act because UCHS' lunch hour does not fall within the Act's definition of "noninstructional time." We disagree.

The plain meaning of "noninstructional time," as defined in § 4072(4), includes the lunch period at UCHS. At UCHS, classroom instruction begins at 7:25 a.m. and ends at 11:30 a.m.; it resumes at 12:15 p.m. and continues until 2:10 p.m. The parties specifically stipulated that no classroom instruction occurs during the school's lunch hour. In fact, students are not even required to remain on campus during this time. Accordingly, we find that the school has "set aside" the lunch hour as non-classroom, noninstructional time, which occurs "after actual classroom instruction" ends for the morning session and "before actual classroom instruction begins" for the afternoon. Moreover, because the plain meaning of "noninstructional time" is unambiguous, we need not look to the Act's legislative history. See Rumsey Indian Rancheria of Wintun Indians v. Wilson, 41 F.3d 421, 427 (9th Cir.1994), amended on denial of rehearing, 64 F.3d 1250 (9th Cir.1995) (citing United States v. Taylor, 487 U.S. 326, 344-46, 108 S.Ct. 2413, 2423-25, 101 L.Ed.2d 297 (1988) (Scalia, J., concurring)).

Our straightforward reading of § 4072(4) is in accord with the purpose of the Equal Access Act, and the principles for interpreting it set forth by the Supreme Court in Board of Education v. Mergens, 496 U.S. 226, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990). In Mergens, the Court noted that the Act reflects "a broad legislative purpose," id. at 239, 110 S.Ct. at 2366, and repeatedly defined the purpose of the Act in broad terms. See, e.g., id. at 238, 110 S.Ct. at 2365 ("[T]he purpose of granting equal access is to prohibit discrimination between religious or political clubs on the one hand and other noncurriculum-related student groups on the other[.]"); id. at 241, 110 S.Ct. at 2367 ("... Congress clearly sought to prohibit schools from discriminating on the basis of the content of a student group's speech[.]"); id. at 249, 110 S.Ct. at 2371 ("Congress' avowed purpose [was] to prevent discrimination against religious and other types of speech[.]").

To fulfill the Act's broad purpose, the Court held that the Act must be given a "broad reading." Id. at 239, 110 S.Ct. at 2366. Only by interpreting "noninstructional time" to include lunch periods can we adhere to the Supreme Court's instruction and have our interpretation be "consistent with Congress' intent to provide a low threshold for triggering the Act's requirements." See id. at 240, 110 S.Ct. at 2366.

Although we hold that the lunch period at UCHS is noninstructional time, and that UCHS therefore impermissibly denied Ceniceros' group the opportunity to meet during that time, we emphasize that Ceniceros' group's right to meet is defined by the extent to which other groups were permitted to meet. It is unclear from the record, and indeed neither party could definitively answer at oral argument, whether the student groups that met at lunch met in classrooms. If other noncurriculum groups were permitted to meet in classrooms, UCHS should not have denied classroom access to Ceniceros' group. Likewise, if those groups met on school grounds, but not in classrooms, Ceniceros' group was entitled to similar access under the Act.

Our decision today does not necessarily preclude school districts from disallowing religious groups from using school premises for meetings during lunch periods. The Act is about equal access. If a school district wanted to prohibit religious groups from meeting during lunch, the school need only make its prohibition neutral, so that all noncurriculum-related groups are barred from meeting at lunch. Cf. Mergens, 496 U.S. at 241, 110 S.Ct. at 2367 (The Act's obligation that schools treat student groups in a nondiscriminatory manner "is the price a federally funded school must pay if it opens its facilities to noncurriculum-related student groups.") (emphasis added). Nor would this interpretation prevent a school from making affirmative statements to dispel any mistaken impression of its endorsement of the religious club. See id. at 270, 110 S.Ct. at 2382-83 (Marshall, J., concurring in judgment) (arguing that school has an affirmative duty to disclaim endorsement of religious club); Douglas Laycock, Equal Access and Moments of Silence, 81 Nw. U.L.Rev. 1, 18 (1986) (suggesting that school can explain its open forum policy to avoid confusion about school endorsement of religious groups). Today we hold...