May v. Evansville-Vanderburgh School Corp.
| Decision Date | 27 June 1985 |
| Docket Number | No. EV 84-165-C.,EV 84-165-C. |
| Citation | 615 F. Supp. 761 |
| Parties | Mary MAY, Plaintiff, v. EVANSVILLE-VANDERBURGH SCHOOL CORPORATION; Lonnie Freeman, Albert J. Umbach, Jr., Martha Schmadel, Suzanne Aiken, and Elaine Amerson, individually and in their official capacities as members of the Board of Education; and Victor L. Fisher, Jr., individually and in his official capacity as Superintendent, Defendants. |
| Court | U.S. District Court — Southern District of Indiana |
Terry Noffsinger, Noffsinger & Deig, Evansville, Ind., Thomas Stephen Neuberger, Wilmington, Del., John W. Whitehead, Manassas, Va., for plaintiff.
Jeffrey R. Frank, Evansville, Ind., Ron A. Hobgood, Robert Musgrave, Kightlinger Young Gray & DeTrude, Evansville, Ind., for defendants.
This matter comes before the Court upon cross motions for summary judgment filed by the parties to this action. The motions address the basic issue on the merits of this case, i.e., whether the United States Constitution permits a school board to prohibit so-called prayer meetings conducted by school employees on school property. This Court has jurisdiction over the action pursuant to 28 U.S.C. §§ 1331 and 1343.
There is little dispute about the facts surrounding the meetings which transpired and which are at issue in this case. The plaintiff, Mary May, is a teacher's aide employed by the Evansville-Vanderburgh School Corporation ("EVSC"). She has been so employed for approximately six (6) years. During the 1981-82 school year, Mrs. May and other EVSC employees, either full-time teachers or teachers' aides, met on Tuesday mornings at Harper School for prayer, religious devotions, and religious speech. All of the participants worked at Harper School, an elementary school operated by the EVSC. The meetings were conducted weekly from 7:25 until 7:45 a.m., all occurring before teachers were to report to duty stations in the school. The meetings were voluntary. All participants were adults. No students attended the meetings. The meetings continued for some period of time, not altogether clear from the record, until early in the 1983-84 school year. No school corporation administrators were aware of the meetings until that time.
In September, 1983, Kenneth Wempe became the new principal at Harper School and instituted a practice of publishing a daily school newsletter. Mrs. May approached Mr. Wempe and inquired if the newsletter might include notice of the weekly prayer meetings. As Mrs. May testified in her deposition:
Well, he has a daily newsletter that goes out every day, and I wrote a little voluntary invitation to invite anyone that would like to to (sic) come to the prayer and religious meetings at that time and gave it to him.
(May deposition, Q. 161, p. 23).
Shortly thereafter, Mrs. May was advised by Mr. Wempe, who had consulted with school corporation administrators, that the meetings should stop because they violated school board policy. Although no written policy is evident, it appears from the record that the school board and the superintendent of schools had consistently applied a policy prohibiting use of school facilities for religious activity. At all times pertinent to this complaint, no religious meetings occurred on school property, at least to the knowledge of school administrators, and no meetings of teachers occurred at Harper School except for those necessary to the operation and management of the school.
There is no evidence that Mrs. May's meetings were disruptive to the school environment. Obviously, the meetings continued for a lengthy period of time undiscovered by school officials.
After being told that further meetings would not be permitted, Mrs. May and her group met in a car on the school parking lot at the appointed time.
In her complaint, Mrs. May alleges five constitutional rights were violated by the defendants' action: free speech, free association, equal protection, equal protection in a public forum, and free exercise of religion.
The Court first determines whether Harper School is a public forum, whether the defendants have made Harper School a public forum, or whether the defendants have made Harper School a limited public forum.
The First Amendment "does not guarantee access to property simply because it is owned or controlled by the government." United States Postal Service v. Council of Greenburgh Civic Assns., 453 U.S. 114, 129, 101 S.Ct. 2676, 2685, 69 L.Ed.2d 517 (1981). The Supreme Court has not "suggested that students, teachers or anyone else has an absolute constitutional right to use all parts of a school building or its immediate environs for ... unlimited expressive purposes." Grayned v. City of Rockford, 408 U.S. 104, 117-18, 92 S.Ct. 2294, 2304, 33 L.Ed.2d 222 (1972).
A public school does not become a public forum simply by its existence. A school system is justified and is on firm constitutional ground in refusing to allow the use of school facilities as a public forum. Seyfried v. Walton, 668 F.2d 214 (3rd Cir.1981); Brandon v. Board of Education, 635 F.2d 971, 980 (2nd Cir.1980), cert. denied, 454 U.S. 1123, 102 S.Ct. 970, 71 L.Ed.2d 109 (1981). "In addition to time, place, and manner regulations, the State may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view." Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 46, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983) citing Greenburgh, supra, 453 U.S. at 131, n. 7, 101 S.Ct. at 2686, n. 7.
The Court finds in this case that Harper School is not a public forum in the inherent or traditional senses. Examples of such public forums would be streets, sidewalks, or parks. See, Martin v. Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943); Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939).
While a public forum may be "created" by the governmental entity, that `creation" requires some deliberate uses as a place for exchange of views. Perry, supra, see also, Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981). Because public ownership does not guarantee public access, the Court must inquire whether the defendants have deliberately created a public forum at Harper School. It is clear on this record that no such public forum has been created by the defendants. A policy prohibiting religious meetings or activity on school grounds, including Harper, is evident, even if the policy is not written. Consistent application of such a policy amounts to a refusal to create such a forum. Plaintiff attaches significance to an incident several years ago in which a church was permitted to use a neighborhood school for services after a fire destroyed the church building. The Court considers this instance entirely unique and isolated, and it does not represent an intent by the defendants to make school buildings public forums. The plaintiff also argues that the recent adoption of the Equal Access Act by the EVSC makes school buildings public forums. While that Act was adopted after this case was commenced, the evidence is clear that the Act applies to student, rather than teacher groups; that the Act is directed to secondary, rather than elementary schools; and that there is no reference whatever to groups organized by or involving only teachers or school employees. The Court is unpersuaded that the School Board's adoption of that Act as policy is sufficient to create a public forum.
Neither can the Court conclude that even a limited public forum has been created or permitted to exist. The plaintiff argues that teachers discuss a variety of topics prior to the school day, and that the defendants seek only to exclude religious speech by their actions in Mrs. May's case. There is simply no evidence that teachers can discuss anything, and the examples noted by the plaintiff involve the kinds of informal, isolated conversations which occur in any workplace. There is no evidence that teachers met at Harper School, or in any other EVSC school, in a consistent, formal, patterned way other than to conduct business necessary to the operation and administration of the school. Mrs. May's meetings are distinct. They do not represent happenstance conversation or informal meeting; rather, they are formal, organized meetings conducted for the sole purpose of engaging in religious speech and worship. Plaintiff has not, and apparently cannot, point the Court to any other similarly formal meetings in the school involving teachers which do not pertain to school business. If other teacher groups were permitted to meet on a variety of religious and non-religious subjects in the kind of formalized way Mrs. May's group met, there might be an argument that a public forum, or at least a limited public forum, existed in this case and that the exclusion of Mrs. May's group was some denial of constitutional rights. The record reveals no such scenario.
The Court concludes that no public forum existed in the instant case. As such, there is no violation of the plaintiff's free speech rights.
The Court now examines whether the defendants' policy is supported by analysis under the Establishment Clause. Defendants' success on this issue would justify any other alleged infringement of the plaintiff's constitutional rights on grounds of a compelling state interest.
The First Amendment states, in pertinent part, "Congress shall make no law respecting an establishment of religion...." This clause has been interpreted to prohibit three identified "evils" — "sponsorship, financial support, and active involvement of the sovereign in religious activity." Walz v. Tax Commission, 397 U.S. 664, 668, 90 S.Ct. 1409, 1411, 25 L.Ed.2d 697 (1970). Thus, the government is restrained from entanglement with religious speech or activity. This is...
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May v. Evansville-Vanderburgh School Corp.
...and that the exclusion of Mrs. May's group was some denial of constitutional rights. The record reveals no such scenario." 615 F.Supp. 761, 763-64 (S.D.Ind.1985). Mrs. May makes two arguments on appeal. The first is that as an employee of the school she has a right to exercise free speech o......