Prince v. Jacoby

Decision Date09 September 2002
Docket NumberNo. 99-35490.,99-35490.
Citation303 F.3d 1074
PartiesTausha PRINCE, a minor, by and through her parents; James Prince; Kimberly Prince, Plaintiffs-Appellants, v. Jill JACOBY, Superintendent of Bethal School District; Tim Sherry, Principal of Spanaway Lake High School; Bonnie Kenigson, Assistant Principal of Spanaway Lake High School, Bethel School District in their official capacities; Bethel School District, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Keith A. Kemper, Ellis, Li & McKinstry, Seattle, WA, Walter M. Weber, The American Center for Law and Justice, Washington, DC, David A. Cortman, Panama City Beach, FL, for the plaintiff-appellant.

John H. Binns, Jr. & Daniel C. Montopoli, Vandeberg Johnson & Gandara, Tacoma, WA, for the defendants-appellees.

Aaron H. Caplan for the American Civil Liberties Union of Washington, Seattle, WA, and Sue Stengel for the Anti-Defamation League of B'nai B'rith, Las Angeles, CA, amici in support of defendants-appellees.

Appeal from the United States District Court for the Western District of Washington Franklin D. Burgess, District Judge, Presiding.

Before HALL, WARDLAW and BERZON, Circuit Judges.

Opinion by Judge WARDLAW; Concurrence by Judge HALL; Partial Concurrence and Partial Dissent by Judge Berzon.


WARDLAW, Circuit Judge.

In this private right of action under the Equal Access Act (the "Act") and the First Amendment, Tausha Prince, an eleventh grade student at a Bethel School District ("School District") public high school, challenges the school's refusal to allow her Bible club to meet as an Associated Student Body ("ASB") club, entitled to the same benefits as other student clubs. Instead, Prince's club was recognized only as a "Policy 5525 club," which limited her club's access to benefits offered by the high school. Prince appeals from the district court's grant of summary judgment in favor of the School District, in which the district court found that the Equal Access Act and the Establishment Clause forbid offering a religious club the various advantages offered to other student clubs.

We consider each of Prince's access claims separately, first under the Act, and then the First Amendment, to the extent we find them outside the scope of the Act. Having done so, we hold that the School District violated either the Act or Prince's First Amendment rights by denying her Bible club the same rights and benefits as other School District student clubs and by refusing to allow the Bible club equal access to school facilities on a religion-neutral basis. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse the district court's decision.

I. Background

Tausha Prince, an eleventh grade student at Spanaway Lake High School, and other students established a Christian Bible club called the "World Changers." The purpose of World Changers is to address issues of interest to students from a religious perspective, including service to the student body and the community, diversity and acceptance of all people, helping students to cope with daily pressures, as well as "celebrating" and "sharing" the Gospel of Jesus Christ. The School District rebuffed Prince's attempt to form the club as an officially recognized ASB noncurriculum-related club. Prince, through counsel, wrote to the School District suggesting that the refusal to recognize the World Changers as an ASB group violated the Act. In response, the School District stated that under District Policy 5525, religious organizations could be formed only as Policy 5525 clubs. After the school denied her second request to form as an ASB group, Prince submitted an application to form her club as a Policy 5525 group.

The School District enacted Policy 5525 in June 1994 in an attempt to comply with the Equal Access Act. Modeled on section 4071(c) of the Act, the policy authorizes student sponsored and initiated student groups to meet at the school, subject to approval by the principal. The policy provides for approval, so long as the groups 1) remain voluntary and student initiated; 2) are not sponsored by the school or its staff; 3) hold meetings that do not materially and substantially interfere with the orderly operation of the school; 4) require that students, rather than outsiders, are responsible for the direction, control, and conduct of the meetings; 5) do not require students to participate in any religious activity; 6) do not use school funds for other than incidental and/or monitoring costs; 7) do not compel any staff member to attend; and 8) respect the constitutional rights of all persons. Policy 5525 clubs are not entitled to the same benefits as ASB clubs.

Prince claims that by denying the World Changers access to the same benefits as ASB groups, the School District denies her equal access to this forum in violation of the Act. These benefits include access to ASB money to fund club activities, as well as free participation in ASB fund-raising events such as the annual craft fair, the school auction, and other fund-raising events. Likewise, ASB groups appear in the school yearbook, produced with ASB funds, free of charge and are permitted to meet during student/staff time during school hours. ASB groups also receive greater access to facilities to publicize their events, including the right to post flyers throughout the school, rather than on a single bulletin board, and the use of the public address system. Finally, ASB groups benefit from the expenditure of School District funds as they may use school supplies, have priority access to audio/visual equipment, and use school vehicles for field trips.

The School District maintains that while Prince is welcome to form the World Changers as a Policy 5525 group, granting the World Changers equal status with ASB groups would "destroy the careful balance between the Free Speech and Establishment clauses of the First Amendment" found in the Act. Specifically, because the ASB regulations increase School District scrutiny of the budget, constitution, bylaws, fund-raising, and activities of ASB groups, granting ASB status to religious clubs would result in excessive entanglement between the state and religion, and would attach the school's imprimatur to the club in violation of the Establishment Clause. Moreover, the School District contends that by creating two separate forums, the Policy 5525 forum and the ASB forum, it avoids viewpoint discrimination in violation of the First Amendment.

In ruling for the School District, the district court first determined that the Act does not require absolute equality of student groups; thus, the School District's distinction between ASB groups and Policy 5525 groups did not violate it. The court also found that the school was a "nonpublic" forum and, accordingly, the School District's distinction between ASB and Policy 5525 groups neither violated Prince's rights to free speech or the free exercise of religion under the First Amendment. Finally, because the nonpublic nature of the school forum did not implicate fundamental rights of freedom of speech or exercise of religion, the School District policy did not violate the Equal Protection Clause of the Fourteenth Amendment.

II. Standard of Review

We review de novo a grant of summary judgment. We must determine whether, viewing the evidence in the light most favorable to Prince, there are any genuine issues of material fact and whether the district court correctly applied the substantive law. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.2000) (en banc).

III. The Equal Access Act
A. Three Distinctions in the Act: Equal Access, Fair Opportunity, and Discrimination

The Equal Access Act, 20 U.S.C. §§ 4071-74 (1984), guarantees public secondary school students the right to participate voluntarily in extracurricular groups dedicated to religious, political, or philosophical expressive activity protected by the First Amendment when other student groups are given this right. The impetus for its enactment in Congress was anecdotal evidence that secondary school students suffered discrimination at the hands of school administrators, sanctioned by federal district courts, who believed that the First Amendment precluded equal access for religious student groups to the public school. See, e.g., 130 Cong. Rec. S8331 (daily ed. June 27, 1984) (statement of Sen. Hatch). The Act was designed to transport the right of equal access to religious activities to limited open forums established with respect to college level students in Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981), to the secondary school level. The Supreme Court upheld the Act's constitutionality against Establishment Clause challenges in Board of Education v. Mergens, 496 U.S. 226, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990). The key provision of the Act provides:

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

20 U.S.C. § 4071(a) (2000).

The Act sets forth certain "triggers" for its applicability. It applies only if the school in question is (1) a public secondary school that (2) receives federal funding, and (3) has established a "limited open forum" by allowing other "non-curriculum" groups to meet on school premises. Spanaway Lake High School is a public high school that receives federal funding. The parties stipulate that Spanaway has created a "limited open forum" under the Act and that the Bible Club is a "non-curriculum" group. Therefore, as both sides agree, the Act is "triggered" in this case.

Left to us to decide is whether the School District's refusal to...

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