Hsu By and Through Hsu v. Roslyn Union Free School Dist. No. 3
| Decision Date | 15 May 1996 |
| Docket Number | D,471,Nos. 332,s. 332 |
| Citation | 85 F.3d 839 |
| Parties | , 109 Ed. Law Rep. 1145 Emily HSU and Timothy Hsu, By and Through their next friend, Dr. Chin-Ching HSU, Plaintiffs-Appellants-Cross-Appellees, v. ROSLYN UNION FREE SCHOOL DISTRICT NO. 3; Michael Barkan, in his official capacity as President of the Roslyn Union Free School District Board of Education; Asenath Anderson, in her official capacity as Vice President of Roslyn Union Free School District Board of Education; William Costigan; Barbara Schwartz; Pat Schissel; Ellen Seigel; Alvin Silverman, in their official capacities as members of the Roslyn Union Free School District Board of Education; Dr. Frank Tassone, in his official capacity as Superintendent of Roslyn Union Free School District; Marilyn Silverman, in her official capacity as Assistant Superintendent of Roslyn Union Free School District; Mark Weyne, in his official capacity as Principal of Roslyn High School; and Dr. Howard Rubin, in his official capacity as Principal of Roslyn High School, Defendants-Appellees-Cross-Appellants. ockets 95-7311, 95-7333. |
| Court | U.S. Court of Appeals — Second Circuit |
Jay Alan Sekulow, American Center for Law & Justice: Religious Liberties Project, Washington, DC (James Matthew Henderson, Sr., Stuart J. Roth, and Joel H. Thornton, American Center for Law & Justice, Religious Liberties Project, Washington, DC; Keith A. Fournier, American Center for Law & Justice, Virginia Beach, VA; Joseph P. Infranco, Migliore & Infranco, Commack, NY; on the brief), for Plaintiffs-Appellants-Cross-Appellees.
Stanley A. Camhi, Garden City, NY (John O. Fronce, Jaspan, Ginsberg, Schlesinger, Silverman & Hoffman, Garden City, NY, on the brief), for Defendants-Appellees-Cross-Appellants.
Steven Arenson, Arenson, Dittmar & Karban, New York, NY, and Steven M. Freeman and Debbie N. Kaminer, Anti-Defamation League, New York, NY, filed a brief, for Amicus Curiae Anti-Defamation League.
Steven T. McFarland, Kimberlee Wood Colby, and Samuel B. Casey, Center for Law & Religious Freedom: Christian Legal Society, Annandale, VA, and Michael S. Paulsen, Minneapolis, MN, filed a brief, for Amici Curiae Christian Legal Society, National Council of Churches of Christ, National Association of Evangelicals, and Christian Life Commission of the Southern Baptist Convention.
Mathew D. Staver, Frederick H. Nelson, and Nicole Arfaras Kerr, Liberty Counsel, Orlando, FL, filed a brief, for Amicus Curiae Liberty Counsel.
Jay Warona, Pilar Sokol, and Cheryl Randall, New York State School Boards Association, Albany, NY, filed a brief, for Amicus Curiae New York State School Boards Association.
Before VAN GRAAFEILAND, JACOBS and PARKER, Circuit Judges.
Under the Equal Access Act, 20 U.S.C. §§ 4071-4074, public school students who wish to pray and study the Bible together after school enjoy the same right to meet in school classrooms as other extracurricular groups. The school can avoid the requirements of the Equal Access Act by prohibiting all "noncurriculum related" student groups or by declining federal funding. In this case, a public high school subject to the Act negotiated to impasse with a small group of students who wanted to form an after-school Bible Club. Agreement was reached on every aspect of the club's status and operation, but one. The students insisted on a club charter provision that only Christians could be club officers; the school refused recognition on the sole ground that this condition violated the school policy prohibiting all student groups from discriminating on the basis of (among other things) religion. The students sued, and moved for a preliminary injunction that would force the school to recognize the club. The United States District Court for the Eastern District of New York (Leonard D. Wexler, J.) denied the motion. We review that denial.
We conclude that the club's Christian officer requirement, as applied to some of the club's officers, is essential to the expressive content of the meetings and to the group's preservation of its purpose and identity, and is therefore protected by the Equal Access Act. This application of the Act is constitutional because the school's recognition of the club will not draw the school into an establishment of religion or impair the school's efforts to prevent invidious discrimination. We therefore affirm in part and reverse in part.
Except for some immaterial details of chronology, the following facts are undisputed in the complaint, the answer, and the affidavits submitted to the district court. 1
Roslyn High School (the "School") is a public school serving grades nine through twelve. Located in Roslyn, New York, the School is part of the Roslyn Union Free School District (the "District"). The District is governed by a Board of Education (the "Board"), which employs a Superintendent to implement its policies.
In September 1993, as Emily Hsu began her senior year at Roslyn High and her brother Timothy entered as a freshman, Emily met with the school's principal, Mark Weyne, to ask if she could form an after-school Christian Bible Club (the "Club"). He told her that he would look into it, and referred the matter to the office of the District Superintendent. In November 1993, the Assistant Superintendent for Curriculum and Instruction, Marilyn Silverman, met with Emily and Jane Shin (another Roslyn High student interested in forming a Bible club) "to obtain additional information about the club." Emily was told that the Board would discuss the Club at a December 2 meeting. Emily, Jane, and a third interested student, Johnny Whang, attended the meeting. After Emily and Jane explained their proposal to the Board, the Board had a "broad ranging discussion of the issue" and postponed final decision. Emily claims that during that discussion: a Board member stated that School officials did not want the Club to meet, but that they were legally required to grant the Club access; a second Board member suggested that the District should stop accepting federal funds in order to avoid the mandate of the Equal Access Act; and the Board indicated that it was tabling the proposal so that it could study in greater depth the consequences of forgoing federal money.
Several weeks after the Board meeting, Emily and Jane met with Silverman and Roslyn High's new principal, Howard Rubin. The two administrators asked the two students to submit a written constitution describing the proposed Club, so that the Board could make a fully informed decision about whether to recognize it. 2
In early January 1994, Emily delivered to Silverman the Club's proposed constitution. Article I stated that the "Walking on Water" club would be open to all Roslyn High School students "regardless of race, color, age, religion, sex, national origin, or physical handicap." Article II stated that the Club would provide "a time of praise for students to gather in Christian fellowship," which was defined as a time "when Christians gather to praise God ..." (the "Christian fellowship provision"). Fellowship would be provided "in the form of singspiration[, that is,] singing inspirational music which exalts the Lord Jesus Christ...." Article III described the Club's weekly, hour-long meetings. Meetings would open and close with a prayer. The first half of the meetings would consist of "singspiration." The second half might include more prayer, more "singspiration," testimonies from students about their belief in Jesus Christ, guest speakers, skits, games, or Bible study. According to the Hsus, these activities were to be consistent with the Club's overarching goal of spending an hour of spirituality together "to praise God." Article IV listed potential projects for the Club, including volunteer community service, charitable fund raising, and picnics.
Article V concerned "Elections and Officers." Officers were to be elected in May for the following academic year by a majority vote of those students who attended two-thirds of the Club's meetings during the year. Five officer positions were created: President, Vice-President, Secretary, Music Coordinator, and Activities Counselor. The President would be "responsible for the overall spiritual direction and oversight of the Bible club ... [and] the spiritual content of the regular weekly meetings," and the Vice-President would help perform these responsibilities. The Secretary would take the minutes and do the accounting. Both the Vice-President and Secretary were to "be prepared to perform the presidential functions" in the President's absence. The Music Coordinator would select the "praise and worship songs" and "lead the singing and worship of the Lord" at "Singspiration time." The Activities Coordinator would plan the community service work, charitable fundraising, and picnics. All officers had to be prepared "to open or close a meeting with prayer or to lead a Bible study," and "to give testimony to the life-changing presence of Jesus Christ in his/her life." Article V required that all of these officers be "professed Christians either through baptism or confirmation" (the "leadership provision"). That provision is the bone of contention here.
In late January, Silverman and Rubin again met with Emily and Jane. They explained to the students that two provisions of the Club's constitution were unacceptable: the provision defining Christian fellowship as a gathering of "Christians," and the provision limiting officers to "professed Christians." Emily responded by crossing out the word "Christians" in the Christian fellowship provision, and writing in the more inclusionary word, "people." Emily was more unbending as to the School's second objection, however, and wrote the following sentences in the margin of the leadership provision: ...
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