Garnett By and Through Smith v. Renton School Dist. No. 403

• Decision Date: 08 March 1993
• Docket Number: No. 91-36036,91-36036
• Parties: , 81 Ed. Law Rep. 704 Richard GARNETT, By and Through his next friend, Peggy SMITH; Scott Germino; Robert Ryan, By and Through his next friend, Jack Ryan; Richard Tracy, By and Through his next friend, Michael Tracy; Stephen M. Hanning, a minor, by Mr. and Mrs. Bruce Sharp, his Guardians Ad Litem; Tanya M. Hanning, a minor, by Mr. and Mrs. Bruce Sharp, her Guardians Ad Litem; Robert M. Mayer, a minor, by Mr. and Mrs. Michael L. Mayer, his Guardians Ad Litem; Jaime R. Mayer, a minor, by Mr. and Mrs. Michael L. Mayer, her Guardians Ad Litem, Plaintiffs-Appellants, v. RENTON SCHOOL DISTRICT NO. 403; Robert N. Anderson, in his official capacity; Brian Baker, in his official capacity; John G. Dubois, in his official capacity; Marcia K. Holland, in her official capacity; Donald Jacobson, in his official capacity; Gary F. Kohlwes, in his official capacity; Margarita Prentice, in her official capacity, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 641

987 F.2d 641

61 USLW 2558, 81 Ed. Law Rep. 704

Richard GARNETT, By and Through his next friend, Peggy SMITH; Scott Germino; Robert Ryan, By and Through his next friend, Jack Ryan; Richard Tracy, By and Through his next friend, Michael Tracy; Stephen M. Hanning, a minor, by Mr and Mrs. Bruce Sharp, his Guardians Ad Litem; Tanya M Hanning, a minor, by Mr. and Mrs. Bruce Sharp, her Guardians Ad Litem; Robert M. Mayer, a minor, by Mr. and Mrs Michael L. Mayer, his Guardians Ad Litem; Jaime R. Mayer, a minor, by Mr. and Mrs. Michael L. Mayer, her Guardians Ad Litem, Plaintiffs-Appellants, v. RENTON SCHOOL DISTRICT NO. 403; Robert N. Anderson, in his official capacity; Brian Baker, in his official capacity John G. Dubois, in his official capacity; Marcia K. Holland, in her official capacity; Donald Jacobson, in his official capacity; Gary F. Kohlwes, in his official capacity; Margarita Prentice, in her official capacity, Defendants-Appellees.

No. 91-36036.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 5, 1993.

Decided March 8, 1993.

Michael Stokes Paulsen, Minneapolis, MN, Michael W. McConnell, Mayer, Brown & Platt, Chicago, IL, for plaintiffs-appellants.

I. Franklin Hunsaker, Bullivant, Houser, Bailey, Pendergrass & Hoffman, Portland, OR, for defendants-appellees.

R. Broh Landsman, Helsell, Fetterman, Martin, Todd & Hokanson, Seattle, WA, for the amicus Anti-Defamation League.

Marc D. Slonim, Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, WA, for the amicus American Civil Liberties Union of Washington Foundation; William D. Hochberg, Levinson, Friedman, Vhugen, Duggan, Bland & Horowitz, Seattle, WA, for Lowell V. Sturgill, Jr., U.S. Dept. of Justice, Washington, DC, for the amicus U.S.

the amicus American Jewish Committee and Church Council of Greater Seattle.

Appeal from the United States District Court for the Western District of Washington.

Before: WRIGHT, FARRIS, and KLEINFELD, Circuit Judges.

FARRIS, Circuit Judge:

FACTS

In the fall of 1984, several students at Lindbergh High School in Renton, Washington, sought permission from school officials to form a religious club. The students requested permission to meet on school grounds before school for prayer, Bible study and religious discussion. The school district permits a number of other student groups to meet on school grounds during noninstructional time, including such groups as the Pep Club, Chess Club and Ski Club. The school district denied the students' request, citing its view that such meetings would violate both the Washington state and federal Constitutions.

The students brought suit claiming that the district's refusal to let them meet on school grounds violated their statutory and constitutional rights to equal access. The students argued that the Equal Access Act, 20 U.S.C. §§ 4071-4074 (1988), requires Lindbergh to allow them to meet at school on the same basis as other noncurriculum related clubs. The students also argued that the Free Speech, Free Exercise, Free Association, Equal Protection and Due Process Clauses protect their right to meet on school grounds.

The Equal Access Act provides that

[i]t 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 the religious, 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." Id. at § 4071(b).

The district court held that the Equal Access Act does not apply to Lindbergh because the school did not have a "limited open forum". Garnett v. Renton School District # 403, 675 F.Supp. 1268, 1274 (W.D.Wash.1987). The court held that the Washington State constitution bars the school officials from permitting religious organizations to meet on school property. The district court rejected all of the students' constitutional claims. Id. at 1276.

We affirmed. 865 F.2d 1121, modified, 874 F.2d 608 (9th Cir.1989). We held that allowing the students to meet at school would violate the Establishment Clause. The Supreme Court vacated our decision and remanded for reconsideration in light of its holding in Board of Education v. Mergens, 496 U.S. 226, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990). Garnett v. Renton School District, 496 U.S. 914, 110 S.Ct. 2608, 110 L.Ed.2d 628 (1990). ¹ We remanded to the district court.

The district court, 772 F.Supp. 531, concluded that by allowing several "noncurriculum" related student groups to meet on school grounds, the school had created a limited open forum. The court held, however, that the Washington State Constitution precludes the Act from requiring the use of school premises by a religious club. The court reasoned that the EAA does not We Reverse.

                preempt the Washington State Constitution because the Act does not require actions that would abridge "constitutional" rights or violate the law.   The students appeal the district court's decision on remand
                

DISCUSSION

This appeal involves questions of law which we review de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

Under the EAA, "if a public secondary school allows only one 'noncurriculum related student group' to meet, the Act's obligations are triggered and the school may not deny other clubs, on the basis of the content of their speech, equal access to meet on school premises during noninstructional time." Mergens, 496 U.S. at 236, 110 S.Ct. at 2364. The district court concluded that there were eleven noncurriculum related student groups at Lindbergh High School. The court therefore found that the school had a "limited open forum" under the EAA.

Nonetheless, the district court held that Lindbergh could not permit the students to meet because the Washington State Constitution prohibits student religious meetings on school grounds. The court held that the EAA did not preempt the Washington State Constitution.

The Supremacy Clause provides that if federal law conflicts with state law, federal law prevails:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Article VI, section 2. The Supreme Court has explained that,

[i]n the absence of explicit statutory language signaling an intent to preempt [state law], we infer such intent where ... the state law at issue conflicts with federal law, either because it is impossible to comply with both ... or because the state law stands as an obstacle to the accomplishment and execution of congressional objectives....

Northwest Central Pipeline v. Kansas Corp. Com., 489 U.S. 493, 509, 109 S.Ct. 1262, 1273, 103 L.Ed.2d 509 (1989). The EAA does not explicitly preempt state law. The district court held that because the Washington constitution does not conflict with the EAA, the court would not infer that Congress intended to preempt state law.

The district court held that sections 4071(d)(5) and (7) of the Act allow school officials to comply with state statutory and constitutional provisions. Sections 4071(d)(5) and (7) provide that "[n]othing in [the EAA] shall be construed to authorize the United States or any State or political subdivision thereof ... (5) to sanction meetings that are otherwise unlawful; [or] ... (7) to abridge the constitutional rights of any person." The district court held that religious group meetings were "otherwise unlawful" and unconstitutional within the meaning of sections 4071(d)(5) and (7), because such meetings violate the Washington constitution.

The students argue that sections 4071(d)(5) and (7) do not allow state law to override the EAA's requirements. They argue that Congress intended section 4071(d)(5) merely to clarify that the Act does not require school districts to permit student meetings that would be illegal for reasons other than their religious nature. They argue that section 4071(d)(7) only clarifies Congress' intent that the Act not be construed to limit federal constitutional rights.

The dispute over the applicability of the EAA thus turns on the meaning of §§ 4071(d)(5) and (7). We begin with the plain language. Mergens, 496 U.S. at 237, 110 S.Ct. at 2365. Section 4071(a), the central provision of the Act, prohibits "any public secondary school" which receives federal funding and which has a limited open forum from denying religious student groups equal access. Sections 4071(d)(5) While section 4071(a) prohibits discrimination against a group on account of the religious character of its speech, it does not protect speech that is "otherwise unlawful" (section 4071(d)(5)). The school board's contention that section 4071(d)(5) permits states to bar meetings on campus because of their religious content renders the term "otherwise" meaningless. "Otherwise" refers to the protection afforded religious speech by section 4071(a). Thus, the phrase "otherwise unlawful" in section 4071(d)(5) is most logically understood as authorizing schools to bar meetings that are unlawful for reasons other than their religious content.

                and (7) are designated as rules of construction, not exceptions to the Act.   As such, they instruct the court how to interpret the Act's central command that schools not discriminate against religious speech
                

We must read section 4071(d)(7) in the context of the entire Act. The provisions of sections 4071(c) and (d) are almost uniformly concerned with preventing an unconstitutional...