Perumal v. Saddleback Valley Unified School Dist.

• Decision Date: 29 January 1988
• Docket Number: No. G003181,G003181
• Citation: 243 Cal.Rptr. 545,198 Cal.App.3d 64
• Court: California Court of Appeals Court of Appeals
• Parties: , 44 Ed. Law Rep. 455 Alexander PERUMAL and Fredrick Russell Read, by Guardian ad Litem, F. Znette Read, Petitioners and Appellants, v. SADDLEBACK VALLEY UNIFIED SCHOOL DISTRICT et al., Respondents.

Page 545

243 Cal.Rptr. 545

198 Cal.App.3d 64, 44 Ed. Law Rep. 455

Alexander PERUMAL and Fredrick Russell Read, by Guardian ad Litem, F. Znette Read, Petitioners and Appellants, v. SADDLEBACK VALLEY UNIFIED SCHOOL DISTRICT et al., Respondents.

No. G003181.

Court of Appeal, Fourth District, Division 3, California.

Jan. 29, 1988.

As Modified Feb. 19, and Feb. 29, 1988.

David L. Llewellyn, Jr., Santa Ana, for petitioners and appellants

Rutan & Tucker, David C. Larsen, Costa Mesa, and Leonard P. Sawyer, for respondents.

OPINION

SONENSHINE, Associate Justice.

Alexander Perumal and Fredrick Read appeal from a judgment denying a petition for writ of mandate seeking an order of the court directing Saddleback Valley Unified School District to allow distribution of a religious club's flyers on the district's high school campuses and to compel publication of the club's advertisement in a high school yearbook.

I

During the 1984-1985 school year, Alexander Perumal, a student at El Toro High School, and Fredrick Read, a student at Mission Viejo High School, were members of student groups known as "New Life." The groups were organized to provide a forum for students to engage in Bible study and prayer during school. The students talked informally outside in groups of five to twenty-five during the lunch hour. The school's principals and the school district were aware of the meetings, but did not object. ¹

In February 1985, in a written request to El Toro's principal, Perumal sought approval to distribute a flyer announcing the meetings. His request was denied. Read made a similar request to his principal and received the same response. Read also submitted an advertisement for the meetings which he asked be placed in the Mission Viejo High School yearbook. It was also rejected. ²

Perumal and Read filed a petition for writ of mandate in superior court. They sought an order directing Saddleback Valley Unified School District to permit distribution of the New Life flyers at their high schools and to compel the publication of Read's New Life yearbook advertisement. Their petition was denied without comment.

II

Must a tax supported high school district board, which has adopted a closed forum policy, allow a student club to distribute religious flyers on the school campus during school hours or to place religious advertisements in a high school yearbook? In answering these questions, we look to the state and federal constitutions and relevant statutory and case authority.

"The First Amendment of the United States Constitution decrees, 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof....' [p] The Amendment is made applicable to the states through the Fourteenth Amendment (Abington School Dist. v. Schempp (1963) 374 U.S. 203, 215 [10 L.Ed.2d 844, 854, 83 S.Ct. 1560, 1567] ). [p] California's Constitution, however, in provisions not dependent upon the federal Constitution (Cal. Const., art. I, §§ 4, 24,) expresses the same sentiments: 'Free exercise and enjoyment of religion without discrimination or preference are guaranteed.... The Legislature shall make no law respecting an establishment of religion.' (Cal. Const., art. I, § 4.) [p] But California's constitutional provisions are more comprehensive than those of the federal Constitution (Fox v. City of Los Angeles (1978) 22 Cal.3d 792, 796 [150 Cal.Rptr. 867, 587 P.2d 663] ), and particularly so in the area of involvement of religion in schools. Thus, article XVI, section 5, in providing that 'Neither the Legislature, nor any county, city and county, township, school district, or other municipal corporation, shall ever make an appropriation, or pay from any public fund whatever, or grant anything to or in aid of any religious sect, church, creed, or sectarian purpose to help or to support or sustain any school, college, university ...,' 'forbids more than the appropriation or payment of public funds to support sectarian institutions. It bans any official involvement, whatever its form, which has the direct, immediate, and substantial effect of promoting religious purposes.' (California Educational Facilities Authority v. Priest (1974) 12 Cal.3d 593, 605, fn. 12 [116 Cal.Rptr. 361, 526 P.2d 513].)" (Bennett v. Livermore Unified School Dist. (1987) 193 Cal.App.3d 1012, 1016-1017, 238 Cal.Rptr. 819, emphasis added.)

California, pursuant to Education Code section 48907 insures students free speech rights provided there is no disruption of the educational process. But the statute also allows for school districts to promulgate their own lawful regulations and provides the students' rights may be restricted if the expression is in violation of those regulations. ³

The district, pursuant to Education Code section 48907, enacted board policy 5133.1 prohibiting off-campus groups from functioning or advertising on campus. ⁴ But Perumal and Read maintain because they are petitioning as individuals and not as members of groups, board policy 5133.1 is inapplicable. We disagree.

New Life falls within the plain and ordinary meaning of an "off-campus or private club." A group is a club when it advertises itself as an identifiable entity, promotes a common purpose, and solicits new members.

Webster's Third New International Dictionary (1971) at page 430, column 1, b(1), defines "club" as "an association of persons for social and recreational purposes or for the promotion of some common object (as literature, science, political activity) usually jointly supported and meeting periodically ..."

New Life has always been identified by its specific name. In their correspondence with the district, Perumal and Read referred to their groups as New Life. The advertisements sought to be distributed and published promote "New Life at ETHS" and "Mission Viejo New Life."

Both New Life groups maintained leadership structures to effectively pursue the club's purpose and recruit new members. In their communications with the district, including their requests to distribute literature, Perumal and Read referred to themselves as "president" of their respective groups. As Perumal's and Read's advertisements indicated, the New Life groups met on specific days, at a specific time, and in a specific location. The meetings were not merely spontaneous lunch discussions.

Moreover, their proposed advertisements put to rest any lingering doubts. They provide information on the group known as "New Life" and a meeting schedule. They also state the purpose is "meeting other Christians," "studying the Bible," and "prayer." The New Life groups are private clubs within the commonly understood meaning of "off-campus or private club."

Board policy 5133.5 prohibits off-campus clubs from functioning or advertising on campus. The students argue board policy 5133.1 is vague and overbroad because it does not explain what an "off-campus or private club" is and therefore they do not know how to conform with the regulation. They also suggest they must, by definition, not be off-campus or private clubs because the district did not object to the New Life meetings until there was an attempt to advertise. Therefore, the New Life groups could not be off-campus or private clubs because advertising should not transform an otherwise permissible informal discussion group into an impermissible club.

But the students miss the point. New Life is a group, and not just because it advertises. And the fact the board has allowed the students to informally meet is of no moment. The district in enacting board policy 5133.5 changed from a limited open forum to a closed forum. But as the district acknowledges, interpersonal communication or informal discussions between students during the school day cannot be prohibited. And students may still organize, outside of the school setting, to conduct more formal discussions.

Seemingly, the yearbook presents a different issue; the school opened its advertising section to anyone who wished to purchase space. The students rely on the Federal Equal Access Act of 1984. (20 U.S.C. § 4071.) ⁵ The Act applies to any public secondary school which receives federal financial assistance. However, the Act is irrelevant in the present case. It applies only to schools which have adopted a limited open forum policy. This school district as discussed, ante, has not. The district has chosen a closed forum and only school-sponsored clubs may function or advertise. ⁶

III

A state or federal constitutional analysis brings no different result. Cases involving students' religious rights must be reviewed in the context of their First Amendment rights and the district's mandate to avoid violating the establishment clause of the First Amendment. "The free exercise clause of the federal Constitution embodies two rights: Freedom to believe and freedom to act. 'The first is absolute but, in the nature of things, the second cannot be.' [Citation.] Under the free exercise clause, freedom of conscience and freedom to adhere to such religious organizations or beliefs as the individual may choose is secured against governmental interference. [Citation.] This is not to say, however, that religion may be exercised wherever and whenever the adherent chooses. [Citations.] The inevitable consequence of the establishment clause when applied to religious ritual on school property is to restrict that activity to preserve the wall between church and state. ' "Our constitutional policy ... does not deny the value or the necessity for religious training, teaching or observance. Rather it secures their free exercise. But to that end it does deny that the state can undertake or sustain them in any form or degree. For this reason the sphere of religious activity, as distinguished from the secular intellectual liberties, has been given the two fold protection and, as the state cannot forbid, neither can it perform or aid in performing the religious function. The dual...