Downs v. Los Angeles

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation228 F.3d 1003
Docket NumberNo. 99-56797,99-56797
Parties(9th Cir. 2000) ROBERT DOWNS, v. LOS ANGELES UNIFIED SCHOOL DISTRICT, Defendant-Appellee
Decision Date07 September 2000

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228 F.3d 1003 (9th Cir. 2000)
No. 99-56797
United States Court of Appeals for the Ninth Circuit
Argued and Submitted June 6, 2000
Filed September 7, 2000

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Copyrighted Material Omitted

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Frederick H. Nelson, American Liberties Institute, Orlando, Florida, for the plaintiff-appellant.

Mary Kay Jackson, Office of the General Counsel, Los Angeles Unified School District, Los Angeles, California, for the defendant-appellee.

Appeal from the United States District Court for the Central District of California; Stephen V. Wilson, District Judge, Presiding. D.C. No. CV-98-09876-SVW

Before: Stephen S. Trott, Ferdinand F. Fernandez, and M. Margaret McKeown, Circuit Judges.

TROTT, Circuit Judge:

The narrow question we must answer is whether the First Amendment compels a public high school to share the podium with a teacher with antagonistic and contrary views when the school speaks to its own constituents on the subject of how students should behave towards each other while in school. The answer to this question clearly is no.

Appellant Robert Downs is a teacher at Doris S. Leichman High School ("Leichman High"), a school within appellee Los Angeles Unified School District ("LAUSD"). Downs filed suit against LAUSD pursuant to 42 U.S.C. S 1983 and the United States and California Constitutions, seeking a permanent injunction, declaratory judgment, compensatory damages and attorneys' fees. In his lawsuit, Downs alleged that LAUSD, through its officers and employees, violated his constitutional right to freedom of speech by removing, and by asking Downs to remove, competing material that Downs had posted in the school in response to materials posted on bulletin boards set up by Leichman High staff members for the purpose of recognizing Gay and Lesbian Awareness Month.

The district court granted summary judgment in favor of LAUSD. On appeal, Downs argues that the district court improperly defined and characterized the forum to which he sought access, and thereby employed an incorrect legal standard in deciding the motion for summary judgment. We have jurisdiction pursuant to 28 U.S.C. S 1291 and AFFIRM the grant of summary judgment in LAUSD's favor, but on grounds slightly different from those relied on by the district court. See Baker v. Liberty Mut. Ins. Co., 143 F.3d 1260, 1263 (9th Cir. 1998) ("This court may affirm the summary judgment dismissal on any basis supported by the record.").

Factual Background

The facts of the case, presented in the light most favorable to Downs, see Berry v. Valence Tech., Inc., 175 F.3d 699, 703 (9th Cir.), cert. denied, 120 S. Ct. 528 (1999), reveal that on April 11, 1997, LAUSD issued "Memorandum No. 111," titled "Gay and Lesbian Awareness Month," to all schools and offices in the school district. Memorandum No. 111 referred to a May 18, 1992, formal Board of Education resolution designating June of each year as "a time to focus on gay and lesbian issues." The Memorandum noted that the Board of Education's resolution was passed to support "Educating for Diversity." The Memorandum also specified that

the District's multicultural and human relations education policy includes the expectations that: "Each student has

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equal access to a quality education and an opportunity to participate fully in the academic and social activities of the school," and "School policies and practices act to foster a climate that reduces fears related to difference and deters name-calling and acts of violence or threats motivated by hate and bigotry."

The Memorandum informed the schools and offices that the "Office of Intergroup Relations and the Multicultural Unit, Division of Instructional Services, and the Gay and Lesbian Education Commission" would provide posters and materials in support of Gay and Lesbian Awareness Month.

The posters and materials to be provided to the schools were designed to aid in "the elimination of hate and the creation of a safe school environment for all students. " "In recognition that some of the materials can be controversial in nature," the Memorandum provided that "the representations on the posters" were reviewed by, among other groups, the "Parent Community Services Branch." The Memorandum also "recognize[d] that schools are part of a community and must respect the sentiments held by the local community."

Pursuant to Memorandum No. 111 and the policies described therein, at some time in late May or early June 1997, some Leichman High staff members created a bulletin board inside the school building on which faculty and staff could post materials related to Gay and Lesbian Awareness Month in addition to the materials provided by the district office. Staff members created a similar board the following year. Materials did not need approval before posting on the Gay and Lesbian Awareness bulletin boards, but were subject to the oversight of the school principal, who had ultimate authority within the school over the content of the boards. This was the actual practice and policy at Leichman High. During the time period at issue in this case, there were two different principals at Leichman High: Donna Olmsted from January 1993 to June 1997, and Joseph Marino from July 1997 through at least the beginning of this litigation. As school principals, Olmsted and Marino were accountable to the school board, which itself is made up of publicly elected officials.

Materials posted by faculty and staff that Olmsted and Marino allowed to remain on the school's Gay and Lesbian Awareness bulletin boards covered a wide range of topics. They included a poster titled "The Civil Rights Movement;" a poster titled "Diversity is Beautiful;" a poster on Name Calling; a poster titled "What is a Family;" a bar/pie chart reflecting Statistics on Hate Crimes; a sheet of paper on "The Rainbow Flag;" a sheet of paper explaining the gay and lesbian symbols; a laminated felt rainbow flag with the Greek letter Lambda; a newspaper article regarding LAUSD Board approval of domestic partner benefits; a Board resolution regarding discrimination; a Los Angeles County Human Relations Commission brochure regarding anti-gay and lesbian bashing; a statement that June is Gay and Lesbian Awareness/ Pride month; a sheet of paper identifying famous gays and lesbians in history; a sheet of paper discussing the history of the pink triangle symbol; and a sheet of paper discussing the Lamda symbol. There is no evidence in the record that individuals other than faculty and staff at Leichman High posted these or any other materials on the school's Gay and Lesbian Awareness bulletin boards.

Downs objected to the recognition of Gay and Lesbian Awareness Month at Leichman High. In June of 1997, Downs created his own bulletin board across the hall from his classroom titled "Testing Tolerance." In June of 1998, in response to postings on other Gay and Lesbian Awareness bulletin boards within the school, Downs created a competing bulletin board titled "Redefining the Family." Included among the materials posted by Downs were a portion of the Declaration of Independence, newspaper articles, various school district memoranda, and the following four separate excerpts:

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According to lesbian activist Tories Osborn, 60% of Americans hold the belief that homosexuality is immoral. Most mainline religions in America . . . condemn homosexual behavior.

Do not lie with a man as one lies with a woman; that is detestable. Do not have sexual relations with an animal and defile yourself with it. A woman must not present herself to an animal to have sexual relations with it; that is a perversion. Do not defile yourselves in any of these ways because this is how the nations that I am going to drive out before you become defiled. Leviticus 18:22-24. Obviously and without contention the simultaneous stimulation and mutual satisfaction which the complementary anatomical structures and functioning of the procreative organs of the man and woman produce indicate that they are purposefully intended for one another. Procreation and thereby the proliferation of the human species are further confirmation that such unions are appropriate and natural. Beyond this, the various organs of the digestive and excretory systems can and have been used for similar gratification, but obviously these acts are different and can be objectively evaluated as such.

Anti-sodomy laws in many states stand to prevent or at least complicate homosexual marriage and adoption . . . because . . . the United States Supreme Court upheld state authority to maintain laws prohibiting homosexual sodomy.

From the paltry record before us, we cannot discern when which particular materials were posted or taken down.1 However, as will become clear from the body of our opinion, such details ultimately prove to be irrelevant.

In both 1997 and 1998, after other faculty members complained, Olmsted and Marino either removed Downs's materials or ordered Downs to remove them himself. The record clearly demonstrates that Downs's materials were ordered to be removed in part because members of the school community deemed them "disrespectful," "offensive," "upsetting," "objectionable," and "derogatory." Marino testified that he considered Downs's material inconsistent with the purposes of the Gay and Lesbian Awareness month because he "did not see [Downs's] activity supporting tolerance[and] did not see [Downs's] material supporting diversity."

Leading up to the 1997 removal of Downs's materials, Olmsted, Downs, and LAUSD's counsel engaged in both a written and verbal dispute over the bulletin board issue. In a June 9, 1997 letter to Downs, Olmsted informed him that "[a]s long as you are employed by LA Unified and this Board policy [against discrimination on the grounds of sexual orientation] remains, this is the policy that you are expected to follow. If you...

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