Mergens By and Through Mergens v. Board of Educ. of Westside Community Schools (Dist. 66)

Decision Date08 February 1989
Docket NumberNo. 88-1227,88-1227
Citation867 F.2d 1076
Parties, 51 Ed. Law Rep. 1160 Bridget C. MERGENS, by & through her next friend, Dr. Daniel N. MERGENS; Stephen P. Hollar, by & through his next friend, Mrs. Judith L. Hollar; Brian P. Rensing, by & through his next friends, Robert W. & Sherry K. Rensing; David K. Harris, by & through his next friends Kenneth & Myra Harris, and Andrea Simmons, by & through her next friends, Robert L. & Linda L. Simmons, Appellants United States of America Intervenor-Plaintiff Below. Kendra K. Kellison, etc. by and through her next of friends, Victor Kraatz and Linda Kraatz; Michelle M. Harris, etc. by and through her next of friends Kenneth Harris and Myra Harris; Kevin Brown, etc. by and through his next of friends Robert W. Rensing and Sherry K. Rensing, Appellants, v. The BOARD OF EDUCATION OF the WESTSIDE COMMUNITY SCHOOLS (DIST. 66); Wayne W. Meier, President of the Westside Community School Board; James E. Findley, Principal of the Westside High School; James A. Tangdall, Assistant Superintendent of the Westside Community School District; & Kenneth K. Hansen, Superintendent of the Westside Community School District, Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

Douglas W. Davis, Virginia Beach, Va., Brant M. Laue, Washington, D.C., for appellant/intervenor.

Allen E. Daubman, Omaha, Neb., for appellees.

Before LAY, Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge, and McMILLIAN, Circuit Judge.

McMILLIAN, Circuit Judge.

Appellants, students who attend Westside High School, a public school, appeal from a final judgment entered in the District Court for the District of Nebraska. The case was tried to the court. The district court held that the formation of a Christian Bible Study Club at Westside High School in Omaha, Nebraska, would violate the establishment clause of the first amendment.

For reversal, appellants argue that (1) Westside High School maintains an open forum, (2) the Equal Access Act, 20 U.S.C. Secs. 4071-4074 (1984) (EAA), is constitutional and should be applied to this case, and (3) the actions of the Westside High School administration violate the first and fourteenth amendments. For the reasons discussed below, we reverse the judgment of the district court.

Westside High School (WHS) is a part of the Westside Community School system, an independent public school district, in Omaha, Nebraska. The school is controlled by appellee, the Board of Education of the Westside Community Schools (School Board). As a public school, WHS receives federal funds.

WHS students are allowed to become members of various student groups and clubs, all of which meet after school hours on school grounds. The students may choose from approximately thirty different groups and clubs on a strictly voluntary basis. All of the clubs have faculty sponsors.

Board Policy 5610 recognizes these student clubs as a "vital part of the total education program as a means of developing citizenship, wholesome attitudes, good human relations, knowledge and skills." There is no written school board policy concerning the formation of clubs. Rather, students wishing to form a club present their goals and objectives to a school official who analyzes the stated goals and objectives and decides whether or not the proposed club is consistent with Board Policy 5610. Until appellants attempted to form a Christian Bible Study club in January 1985, no club had ever been denied access to the school.

Appellants first presented their idea for a Christian Bible Study Club to Dr. Findley, the principal of WHS. Dr. Findley denied their request. Again in February 1985, appellants presented their request to Dr. Findley and Dr. Tangdall, associate superintendent of schools for the Westside Community Schools. At that time the request was discussed with Kenneth Hansen, superintendent of schools for the Westside Community Schools. The three school officials agreed that appellants' request should be denied on the basis that allowing such a club would violate the establishment clause of the first amendment.

On March 4, 1985, appellants petitioned the School Board to approve their request to form a Christian Bible Study Club. Appellants stressed to the Board that they were not requesting a faculty sponsor unless required by school policy. If one were required, appellants asserted that the faculty sponsor would only be needed for custodial purposes. The School Board denied appellants' request stating that the proposed club would not be consistent with Board policy which permits school buildings to be used only for school-sponsored, curriculum-related activities.

In April 1985 appellants brought suit in the District Court for the District of Nebraska alleging that their freedom of speech, freedom of assembly and association, and freedom to exercise religion had been violated by the School Board and its employees in violation of the first and fourteenth amendments, Article I of the Nebraska Constitution, and the Equal Access Act, 20 U.S.C. Secs. 4071-4074.

On February 2, 1988, the district court entered judgment in favor of appellees. The court held that WHS maintains a closed forum and that therefore the Equal Access Act does not apply to WHS. Bridget Mergens, et al. v. The Board of Education of the Westside Community Schools, et al., No. CV 85-0-426, slip op. at 13 (D.Neb. Feb. 2, 1988). The court further held that the actions of WHS officials did not violate the students' first and fourteenth amendment rights. Id. at 15. This appeal followed.

Application of the Equal Access Act

The EAA provides in relevant part:

(a) Restriction of limited open forum on basis of religious, political, philosophical, or other speech content prohibited

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 the religious, political, philosophical, or other content of the speech at such meetings.

(b) "Limited open forum" defined

A public secondary school has a limited open forum whenever such 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. Sec. 4071(a)-(b).

The EAA is only applicable to those federally assisted public secondary schools which maintain a "limited open forum" as defined by the Act. A public secondary school may properly exclude a student club on the basis of the content of the club's speech only if the school maintains a closed forum--that is, if all of the other student clubs are curriculum related. If even one noncurriculum-related student club is allowed, the school maintains a limited open forum as defined by the EAA and cannot deny the club access to school premises during noninstructional time on the basis of the content of the club's speech.

"Noncurriculum related" is not defined in the Act. Appellants argue, however, that WHS has created a limited open forum because several of the student clubs are noncurriculum-related. Some ten clubs were cited by appellants as being noncurriculum-related. Among these are the Chess Club; Interact, a service club peripherally connected to Rotary International; Subsurfers, a club for students and community members interested in scuba diving; and Zonta, the female counterpart to Interact.

At trial, WHS attempted to show that each of these clubs is curriculum-related. For example, Dr. Findley testified that the Chess Club related to the curriculum because it fosters critical thinking and logic. Dr. Findley explained that such skills are extensions of the goals for several different courses, even though WHS does not offer a logic class. Dr. Findley explained that Zonta and Interact are related to the goals of sociology and psychology and that Subsurfers relates to the goals of physical education. The district court found these arguments persuasive and held that WHS maintains a closed forum and that, therefore, the EAA does not apply to WHS. We disagree.

Allowing such a broad interpretation of "curriculum-related" would make the EAA meaningless. A school's administration could simply declare that it maintains a closed forum and choose which student clubs it wanted to allow by tying the purposes of those student clubs to some broadly defined educational goal. At the same time the administration could arbitrarily deny access to school facilities to any unfavored student club on the basis of its speech content. This is exactly the result that Congr...

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6 cases
  • Board of Education of Westside Community Schools 66 v. Mergens Mergens
    • United States
    • U.S. Supreme Court
    • 4 Junio 1990
    ... ... 2356 ... 110 L.Ed.2d 191 ... BOARD OF EDUCATION OF the WESTSIDE COMMUNITY SCHOOLS (Dist. 66), et al., Petitioners ... Bridget C. MERGENS, By and Through Her Next Friend, Daniel N ... ...
  • Good News/Good Sports Club v. School Dist. of City of Ladue
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 29 Septiembre 1994
    ... ... on school days to all community groups except for the Scouts 2 and athletic ... Page 1503 ... meet through Spring 1992. During the 1991-92 school year, the ... of the School District attended a school board meeting and complained about the religious ... NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 806, 105 S.Ct. 3439, 3451, ... 2105, 29 L.Ed.2d 745 (1971); see also Mergens v. Board of Educ., 867 F.2d 1076, 1079 (8th ... trouble concluding that opening the schools for expressive conduct to community and student ... See, e.g., Board of Educ., Westside Community Sch. v. Mergens, 496 U.S. 226, 110 ... ...
  • Gregoire v. Centennial School Dist.
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    • U.S. Court of Appeals — Third Circuit
    • 22 Junio 1990
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