Quappe v. Endry

• Citation: 772 F. Supp. 1004
• Decision Date: 10 September 1991
• Docket Number: No. C-2-88-0872.,C-2-88-0872.
• Parties: Mellissa QUAPPE, et al., Plaintiffs, v. Joseph I. ENDRY, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

772 F. Supp. 1004

Mellissa QUAPPE, et al., Plaintiffs, v. Joseph I. ENDRY, et al., Defendants.

No. C-2-88-0872.

United States District Court, S.D. Ohio, E.D.

September 10, 1991.

COPYRIGHT MATERIAL OMITTED

Robert Melnick, Rutherford Institute and Juan Jose Perez, Schwartz, Kelm, Warren & Rubenstein, Columbus, Ohio, for plaintiffs.

William Henry Jones, Crabbe, Brown, Jones, Potts & Smith, Columbus, Ohio, for defendants.

OPINION AND ORDER

KINNEARY, Senior District Judge.

This matter comes before the Court to consider the cross motions for summary judgment. Fed.R.Civ.P. 56. In this action the plaintiffs charge the defendant school system with an unconstitutional restraint upon their first, ninth, and fourteenth amendment rights by prohibiting their religious organization from a meeting time of their choice at Herbert Mills Elementary School (hereinafter "H.M.E.S."). The plaintiffs, fifth and sixth grade students at H.M.E.S., bring suit pursuant to Rule 17(c) by and through their next-of-friends.¹ Both parties seek declaratory and injunctive relief as well as costs and attorney fees pursuant to 42 U.S.C. § 1988.

This case is about a School Board's decision to require a student bible study to meet at 6:30 p.m. instead of 3:45 p.m.; it is also about the conflict between the free speech and establishment clauses of the first amendment. The plaintiffs are members of a group known as The Good News Club, (hereinafter "the Club"), which is affiliated with the Child Evangelistic Fellowship, an organization based in Warranton, Missouri. Meeting weekly, members of the Club engage in bible study, songs, and social activities, the purpose of which is to teach them the fundamentals of the Christian faith and to encourage a conversion experience. Interrogatory to Plaintiffs # 11.

The Club was founded in the 1970s by Roberta Penwell, a teacher at the school, and has met continuously since that time. Mrs. Penwell was the leader of the Club until 1981. Beginning with only three children, the Club now has a regular membership of approximately forty, comprised primarily of fifth and sixth graders from the school. From its inception, the Club met weekly at 3:30 p.m. immediately following the close of classes on school property. As with other after-school activities,² the Club was required to apply annually for permission to use the facility, such permission being within the discretion of the school and routinely given.

Although leadership of the group is shared among seven adults, none of whom are employed by the school, Mrs. Penwell has continued to play a significant role in the Club's existence. For example, she greets children at the start of each meeting, takes attendance, and assists in distributing materials for class projects. In addition, she has in the past been active in Club recruitment. In her capacity as a teacher, and during her regularly scheduled classes, Mrs. Penwell has also recited prayers on special occasions, permitted a moment of silence after the pledge of allegiance, allowed religious material to be placed on a table in her classroom, displayed religious sayings on her wall, distributed bibles to her class, and invited her students to attend Club meetings.

As a result of complaints received by the school about her classroom activity, in June of 1987 Mrs. Penwell was questioned about her behavior and apprised of the school's concern about the constitutionality of her actions, ultimately receiving a written warning stating that her employment would be jeopardized if she persisted in such behavior. Subsequent to the meeting, Mrs. Penwell submitted an application on behalf of the Club for use of a school room for the 1987-88 school year, for the usual meeting time of 3:30 p.m. In an effort to avoid the appearance that the Club was sponsored in whole or in part by the school, on August 24, 1987, Joseph Endry, the Superintendent of the Reynoldsburg City School District, denied Mrs. Penwell's request for the starting time, granting instead permission for use of the room to commence at 7:30 p.m. The school reasoned that a separation between the close of classes and the commencement of the Club would diminish the appearance that the Club was sponsored or approved by the school. The Club appealed the decision, and the Board decided to allow meetings to commence one hour earlier, at 6:30 p.m.

The plaintiffs argue that the 6:30 starting time constitutes content-based discrimination against them, violative of fundamental rights of free speech, freedom of association and assembly, and the free exercise of religion. They do not argue that the facilities are closed to them; rather, they assert that because the appointed meeting time is unreasonable, they are dependant upon parents in the community to open their homes in order to meet at a more reasonable time. The inconvenience to the children, it is argued, has relegated them to the status of second class citizens. The defendants, on the other hand, argue that the later meeting time was necessary to demarcate clearly between school and nonschool functions brought about by the symbolic nexus between the Club and the school forged by Mrs. Penwell's participation in Club activities. The time, it is argued, constitutes a reasonable accommodation of the Club as demanded by establishment clause principles.

In considering the parties' motions, the Court is mindful that summary judgment is appropriate only in limited circumstances. Rule 56(c) of the Federal Rules of Civil Procedure provides, in pertinent part, as follows:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

The moving party bears the burden of establishing the absence of a genuine issue as to any material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). The United States Supreme Court has held, however, that the standard of summary judgment "mirrors the standard for a directed verdict under Federal Rule of "Civil Procedure 50(a), which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). This is true where, for instance, the dispute turns only on a legal question and the moving party must prevail as a matter of law even if the Court were to resolve all factual disputes in favor of the non-moving party. Miller v. Consolidated Aluminum Corp., 729 F.Supp. 1154, 1155 (S.D.Ohio 1990); see Ross v. Franzen, 777 F.2d 1216, 1222 (7th Cir. 1985); 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 225, at 79 (2d ed. 1983).

A summary judgment motion also requires special treatment of the record. The Court "must view the evidence presented through the prism of the substantive evidentiary burden" and determine "whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict." Anderson, 477 U.S. at 252, 254, 106 S.Ct. at 2512, 2513; see also Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Nonetheless, in making this determination the Court may not impinge upon the proper function of the jury. Therefore, all of "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255, 106 S.Ct. at 2513. With this standard in mind, the Court will address the cross motions for summary judgment.

As an initial matter, the plaintiffs assert that the school is a limited public forum thus subjecting the defendants' actions to strict scrutiny. The Supreme Court has identified three types of fora for purposes of free speech analysis: (1) the traditional public forum; (2) the public forum created by government designation; and (3) the non-public forum. Board of Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569, 572, 107 S.Ct. 2568, 2570, 96 L.Ed.2d 500 (1987) (citing Perry Educ. Ass'n. v. Perry Local Educs. Ass'n., 460 U.S. 37, 45-46, 103 S.Ct. 948, 954-955, 74 L.Ed.2d 794 (1983)). Public schools generally, and elementary schools in particular, are not considered to be traditional public fora. Deeper Life Christian Fellowship, Inc. v. Board of Educ., 852 F.2d 676, 679 (2d Cir.1988) (citing Brandon v. Board of Educ., 635 F.2d 971, 980 (2d Cir.1980), cert. denied, 454 U.S. 1123, 102 S.Ct. 970, 71 L.Ed.2d 109 (1981)) (holding that a high school is not a public forum, thus precluding free airing of religious views). However, a state is free to open to the public facilities which formerly were private if it and the locality, by policy or practice, open the forum to "indiscriminate use by the public," Perry, 460 U.S. at 37, 103 S.Ct. at 948, or to use by a specific segment of the public, such as a student organization. Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1983). "Although a State is not required to indefinitely retain the open character of the facility, as long as it does so it is bound to the same standards as apply in a traditional public forum." Perry, 460 U.S. at 46, 103 S.Ct. at 955. In such a forum, reasonable restrictions on time, place, and manner are permissible, and any content-based prohibition must be narrowly drawn to effectuate a compelling state interest. Widmar, 454 U.S. at 269-70, 102 S.Ct. at 274-75.

Under the limited public forum analysis, the contested property remains a non-public forum as to all unspecified uses, Perry, 460 U.S. at 48, 103 S.Ct. at 956; Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 802, 105 S.Ct. 3439, 3448, 87 L.Ed.2d 567 (1985), and the exclusion of uses, even if based upon the subject matter of the speaker's...