No. 01-2084

In The

Court of Appeal for the Seventh Circuit

 

________________________________________________________________________

 

GERNETZKE, ET AL.,

 

Appellants,

v.

KENOSHA UNIFIED SCHOOL DISTRICT NO. 1, ET AL.,

Appellees.

 

 

________________________________________________________________________

 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN

00-C-201

The Honorable Judge C. N. Clevert

________________________________________________________________________

 

 

 

BRIEF AMICUS CURIAE OF WALLBUILDERS, INC.,

in support of Appellants.

 

 

 

 

Robert K. Skolrood

Counsel of Record

Steven W. Fitschen

The National Legal Foundation

2224 Virginia Beach Blvd., Suite 204

Virginia Beach, VA 23454

(757) 463-6133

 

 

 

 

TABLE OF CONTENTS

table of authorities ii

 

interest of amicus curiae 1

 

argument 2

I. PAINTING A MURAL QUALIFIES AS A "MEETING" UNDER THE EQUAL ACCESS ACT 2

    1. The Equal Access Act’s definition of "meeting" encompasses the

mural at Tremper High School 2

B. The Supreme Court of the United States’ decision in Board of

Education of the West Community School v. Mergens,

496 U.S. 226 (1990) supports the conclusion that if the Bible Club

was allowed to paint a cross on the mural, the painting of the cross

would comport with the Equal Access’ requirement of a meeting

being voluntary 4

    1. The purpose behind the Equal Access Act mandates the Bible

Club’s protected right to paint a cross on the mural at Tremper High 6

  1. THE HECKLER’S VETO DOCTRINE AS EXPLAINED BY THE SUPREME COURT OF THE UNITED STATES AND THIS

COURT REQUIRES THAT THE BIBLE CLUB, REGARDLESS

OF THE ACTIONS OR PERCEPTIONS OF OTHERS, HAVE THE OPPORTUNITY TO PAINT A CROSS ON THE MURAL 7

    1. Just as courts have applied the heckler’s veto doctrine to all traditional
    2. free speech fora, the doctrine should be applied in the limited open

      forum created by the Equal Access Act, thereby prohibiting censorship

      of the Bible Club as a result of the disruptive behavior of others 8

    3. Even if the school is allowed to engage in editorial judgment, Pulaski

must still comport with the Equal Access Act, which requires that the

Bible Club have the opportunity to paint the cross on the mural 11

 

CONCLUSION 13

 

 

 

 

 

TABLE OF AUTHORITIES

CASES PAGE(S)

Arkansas Educational Television Commission v. Forbes,

523 U.S. 666 (1998) 12

 

Beauharnais v. Illinois, 343 U.S. 250 (1952) .10

 

Board of Education of the West Community School v. Mergens,

496 U.S. 226 (1990) 2, 4, 5, 6, 7, 11, 12

 

Chicago Acorn v. Metro.Pier and Exposition Auth.,

150 F.3d 695 (7th Cir. 1998) 8, 11, 12

 

Clark v. Dallas Independent School District,

806 F. Supp. 116 (N.D. Tex. 1992) .5

 

Cox v. Louisiana, 379 U.S. 536 (1965) 8, 9, 10

 

Doe v. Small, 964 F.2d 611 (7th Cir. 1992) 11, 12, 13

 

Edwards v. South Carolina, 372 U.S. 229 (1963) 9

 

Feiner v. New York, 340 U.S. 315 (1951) 9

 

Forsyth v. Nationalist Movement, 505 U.S. 123 (1992) 8, 10, 11, 12

 

Good News Club v. Milford Cent. Sch., No. 99-2036,

2001 U.S. LEXIS 4312 (June 11, 2001) 8, 10, 12, 13

 

Gernetzke v. Kenosha Unified Sch. Dist.,

No. 00-C-201 (E.D. Wisc. Mar 28, 2001) 2, 3, 4, 7

 

Nat’l Endowment for the Arts v. Finley, 524 U.S. 569 (1998) 10

 

Nelson v. Streeter, 16 F.3d 145 (7th Cir. 1994) 8, 9, 11

 

Texas v. Johnson, 491 U.S. 397 (1989) 8

Thompson v. Waynesboro Area School District,

673 F. Supp. 1379 (M.D. Penn. 1987) 5, 6

 

STATUTES PAGE(S)

20 U.S.C. 4071 (2001) 5, 7, 9

20 U.S.C. 4072 (2001) 3

 

OTHER AUTHORITIES PAGE(S)

Gernetzke Deposition. 5

Johnson Affidavit 2

Pulaski Affidavit 2, 3

 

Pulaski Deposition 3

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

INTEREST OF AMICUS CURIAE

Amicus curiae WallBuilders, Inc. is a 501(c) (3) organization that is dedicated to the restoration of the moral and religious foundation on which America was built. WallBuilders’ President, David Barton, is a recognized authority in American history and the role of religion in public life. Along with working as a consultant to national history textbook publishers, he has been appointed by the State Boards of Education in California and Texas to help write American history and government standards for students in those states. He also consults with Governors and State Boards of Education in several other states, and he has testified in numerous state legislatures on American history.

WallBuilders has a direct interest in seeing that religious organizations are not treated with hostility and that their activities are not unconstitutionally inhibited. This case is of particular interest because it involves a religious group seeking equal access in the public school system.

WallBuilders encourages all citizens across America to continue the established traditions of bringing religious perspectives to bear on public life. In ensuring the continuance of America’s religious heritage and traditions, WallBuilders seeks to ensure that religion is not unconstitutionally burdened or forbidden from public life and events. This case is of particular interest because it involves a religious group seeking equal access in the public school system.

Lastly, this brief is filed pursuant to the consent of Mathew D. Staver, counsel of record for Liberty Counsel, and a Motion for Leave to File a Brief Amicus Curiae.

 

 

ARGUMENT

While the case at bar deals with multiple issues, this brief only addresses issues

 

pertaining to the Equal Access Act.

  1. Painting a Mural Qualifies as a "Meeting" Under the Equal Access Act.

The Equal Access Act’s text, legislative history, and interpretation under the

United States Supreme Court’s decision, Board of Education of the West Community School v. Mergens, 496 U.S. 226 (1990), support the conclusion that painting a mural in a public school is a voluntary meeting under the Equal Access Act. Therefore, the district court erred in not requiring Principal Pulaski (hereinafter "Pulaski") to allow Tremper’s Bible Club, Trojans Loving Jesus, (hereinafter "Bible Club") the opportunity to paint a cross on the mural. Specifically, the district court erred by holding, first, that the mural was not a meeting and, second, the mural was not a voluntary activity.

    1. The Equal Access Act’s definition of "meeting" encompasses the mural at Tremper High School.

Under The Equal Access Act’s definition of meeting, the Bible Club members

have a protected right to paint a cross on the mural at Tremper High School. The Equal Access Act’s definition of "meeting" includes "those activities of student groups which are permitted under a school’s limited open forum and are not directly related to the school[’s] curriculum." 20 U.S.C. 4072 (2001) (emphasis added). Thus, "meeting" is not to be construed literally.

"Meeting," as defined by the Equal Access Act, is short-hand for many activities

that are not limited to spacial meetings. Therefore, the mural passes the strictures

of this definition. Painting a mural is "permitted under [the] school’s limited open forum." Id. Pulaski, Tremper High School’s principal, encouraged student groups to paint murals on the walls near the school’s cafeteria. Pulaski Aff. 7; Pulaski Dep at 20. Pulaski made the mural painting part of the "school’s limited open forum" when he allowed noncurricular clubs, such as Students Against Against Drunk Driving, to participate in the mural painting. Pulaski Aff. 8. Also, the mural is not an "activit[y] . . . directly related to the school[’s] curriculum." 20 U.S.C. 4072 (2001). The mural painting was not done for a curricular purpose, such as an assignment for art class or to educate the students. The purpose for painting the walls was "to ‘liven’ the school’s institutional environment." Gernetzke v. Kenosha Unified Sch. Dist., No. 00-C-201, at 5 (E.D. Wisc. Mar 28, 2001) (decision and order granting plaintiff’s motion for judicial notice of federal funding, granting defendant’s motion for summary judgment, denying as moot plaintiff’s motion for summary judgment and dismissing the case with prejudice) (citing Pulaski Aff. 7, Pulaski Dep. at 20). The Bible Club’s mural painting activities constitute a meeting under the Equal Access Act.

 

 

 

B. The United States Supreme Court’s decision in Board of Education of

the West Community School v.Mergens, 496 U.S. 226 (1990) supports the

conclusion that if the Bible Club was allowed to paint a cross on the mural,

the painting of the cross would comport with the Equal Access’ requirement

of a meeting being voluntary.

The district court held that, because other students would pass the mural, the mural was not voluntary. However, under a proper understanding of the Act, the Bible Club’s painting a cross on the mural at Tremper High constituted a "voluntary meeting" and thus, is protected by the Equal Access Act. The Supreme Court of the United States, true to the spirit of the Equal Access Act, recognized that "meeting" encompasses more activities than spacial meetings. The Supreme Court of the United States has held that the Equal Access Act requires full recognition of school clubs.

Respondents seek equal access in the form of official recognition by the school. Official recognition allows student clubs to be part of the student activities program and carries with it access to the school newspaper, bulletin boards, the public address system, and the annual Club Fair. . . . We hold that Westside’s denial of respondent’s request to form a Christian club denie[d] them "equal access" under the Act.

 

Mergens, 496 U.S. at 247 (quotations omitted). Thus, the analysis of the voluntariness of the meeting is directed at the participants and not the entire school population. In fact, Tremper High School already properly permits voluntary meetings of the Bible Club that the district court would presumably characterize as involuntary. Pulaski permits the Bible Club to put posters on the bulletin board and to use the public address system. Gernetzke Dep. at 17, 23. Bible Club posters on bulletin boards and Bible Club announcements over the public address system are voluntary meetings, even though other students not involved with the Bible Club will hear or see them. Therefore, although the mural at Tremper High is in a common area frequented by students, Gernetzke Dep. at 38, that fact does not make the mural an involuntary meeting.

The district court erroneously relied on two cases, Clark v. Dallas Independent School District, 806 F. Supp. 116 (N.D. Tex. 1992) and Thompson v. Waynesboro Area School District., 673 F. Supp. 1379 (M.D. Penn. 1987), to support his proposition that the mural is not a voluntary meeting protected by the Equal Access Act. Both cases held that distributing religious literature is not protected by the Equal Access Act. Clark, 806 F. Supp. at 120; Thompson, 673 F. Supp. at 1384. Neither case, however, affects whether the mural at Tremper High is a voluntary meeting. The facts of Clark take it outside the Equal Access Act since individuals, not a Bible Club, were distributing religious literature. Clark, 806 F. Supp. at 118. Thus, our case is distinguishable since the painting of the cross on the mural is the act of the Bible Club and not of individuals independent of the Bible Club. Moreover, the Clark court did not even mentioned the individual/club distinction but rather made the blanket statement that "[p]laintiffs were not attempting to hold a ‘meeting’ within the scope of 20 U.S.C. 4071(a)." Id. at 120. The Clark court

simply baldly asserted this proposition. The court did not even analyze the definition of meeting under the Equal Access Act and, thus, Clark was likely wrongly decided and certainly cannot serve as guidance on the definition of meeting.

The second case that the district court relied upon is Thompson. The Thompson court’s understanding of what is voluntary is clearly incorrect in light of Mergens. In 1987, prior to Mergens, the Thompson court pronounced that an activity is not voluntary when students who have not selected that activity are touched by the activity, 673 F. Supp. at 1384, however, that pronouncement is superceded by the Supreme Court’s 1990 decision in Mergens. Ironically, the district court’s reliance on Thompson and Thompson’s conflict with Mergens serve to highlight the district court’s erroneous analysis.

As Mergens pointed out, students may not choose to be part of the Bible Club, but they may permissibly be "touched" with the Bible Club posters on the school bulletin board and the Bible Club announcements on the school’s public address system. So here, even though students, other than the Bible Club members, will see the cross on the mural at Tremper High School, the mural constitutes a voluntary meeting under the Equal Access Act.

C. The purpose behind the Equal Access Act mandates the Bible Club’s

protected right to paint a cross on the mural at Tremper High.

The broad legislative purpose behind the Equal Access Act was "to address perceived widespread discrimination against religious speech in public schools." Mergens, 496 U.S. at 239. The sponsors of the Act hoped that it "would do more than merely validate the status quo." Id. Situations such as the one at Tremper High are exactly what Congress sought to alleviate with the Equal Access Act. By not allowing the Bible Club to paint a cross on the mural, Pulaski is discriminating against religious speech in the public school. Even though the Bible Club is an official club and was allowed to paint some religious symbols on the mural, the Bible Club is not getting equal access. The status quo is not enough. The purpose behind the Equal Access Act requires that the Bible Club’s religious speech not be censored and, therefore, that the Bible Club be permitted to paint a cross on the mural at Tremper High School.

  1. THE HECKLER’S VETO DOCTRINE AS EXPLAINED BY THE SUPREME COURT OF THE UNITED STATES AND THIS COURT REQUIRES THAT THE BIBLE CLUB, REGARDLESS OF THE ACTIONS OR PERCEPTIONS OF OTHERS, HAVE THE OPPORTUNITY TO PAINT A CROSS ON THE MURAL.

The district court opinion is contrary to both Supreme Court and Seventh Circuit precedent regarding the heckler’s veto doctrine. Pulaski prohibited the Bible Club from painting the cross because the cross would allegedly "violate the Establishment Clause,

. . . cause school disruption, . . . require equal access on the wall for other controversial expressions, . . . [and] threaten the safety of the school and the Bible Club members." Gernetzke v. Kenosha Unified Sch. Dist., No. 00-C-201, at 6 (E.D. Wisc. Mar 28, 2001). Section (f) of the Equal Access Act states that the school’s agents and employees retain authority under the act to "maintain order and discipline on school premises, [and] to protect the well-being of students and faculty." 20 U.S.C. 4071(f) (2001). However, the fact that the innocent activities of a student group may incite graffiti painting by non-member students is not sufficient to deny the Bible Club equal access or deprive club members of their rights of free speech.

    1. Just as courts have applied the heckler’s veto doctrine to all traditional free speech fora, the doctrine should be applied in the limited open forum created by the Equal Access Act, thereby prohibiting censorship of the Bible Club as a result of the disruptive behavior of others.

The Equal Access Act, while eliminating religious discrimination, ultimately protects the free speech of student groups. Courts have applied the heckler’s veto doctrine in every traditional free speech fora category, and the doctrine should be applied to the statutorily created limited open forum. In cases involving the heckler’s veto, courts have refused to censor innocent speech because of adverse or disruptive conduct of listeners. "Listeners’ reaction to speech is not a content-neutral basis for regulation." Forsyth v. Nationalist Movement, 505 U.S. 123, 134 (1992). Speech cannot be "punished or banned, simply because it might offend a hostile mob." Id. at 134-35. Moreover, Chief Judge Posner announced that a heckler’s veto is not a sufficient justification to limit speech. Chicago Acorn v. Metro. Pier and Exposition Auth., 150 F.3d 695, 701 (7th Cir. 1998). Furthermore, "First Amendment rights are not subject to the heckler’s veto." Nelson v. Streeter, 16 F.3d 145, 150 (7th Cir. 1994) (citing Cox v. Louisiana, 379 U.S. 536, 551 (1965)).

The Equal Access Act does preserve the school’s authority to preclude meetings

that would "materially and substantially interfere with the orderly conduct of educational activities within the school," 20 U.S.C. 4071(c)(4) (2001), and its authority to ensure the safety of students and faculty, 20 U.S.C. 4071(f) (2001). Notably, however, the

Bible Club’s activity of painting a cross on their mural neither interferes with the orderly conduct of educational activities nor threatens the safety of anyone at the school. The actions of those hostile to the Bible Club pose the only threat. The heckler’s veto doctrine specifically prohibits the silencing of innocent speech and expression, such as the Bible Club painting a cross, by the disruptive behavior of hostile observers.

The Supreme Court of the United States has consistently pronounced that "constitutional rights may not be denied simply because of hostility to their assertion or exercise." Cox, 379 U.S. at 551 (citing Watson v. Memphis, 373 U.S. 526, 535 (1963)). The Supreme Court has also given increased protection to speech that is not intended to incite public disruption. Compare Cox v. Louisiana, 379 U.S. 536 (1965), and Edwards v. South Carolina, 372 U.S. 229 (1963), with Feiner v. New York, 340 U.S. 315 (1951). Likewise, this Court distinguished speech "in which a speaker . . . intends to incite a riot [from] a situation in which a riot erupts because his message is offensive or unpopular." Nelson, 16 F.3d at 150. The Bible Club’s request to paint the cross is clearly not intended to incite a riot. If the First Amendment protects speech in response to which a riot may erupt, surely it protects speech that may invoke graffiti. Although some students may be opposed to the Bible Club’s mural, just as others may be opposed to another group’s mural, mere opposition to private speech is an insufficient justification for censorship.

[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech

. . . is . . . protected against censorship or punishment. . . . There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas by legislatures, courts, or dominant political or community groups.

Cox, 379 U.S. at 551 (quotations omitted).

This does not infer that the right to free speech is absolute. It has long been established that the government can censor lewd and obscene speech, libelous and insulting speech, or "fighting words" that are intended to incite a breach of peace. Nat’l Endowment for the Arts v. Finley, 524 U.S. 569 (1998); Cox v. Louisiana 379 U.S. 536 (1965); Beauharnais v. Illinois, 343 U.S. 250 (1952). The government is, however, precluded from censoring private, innocent speech on the pretext of a heckler’s veto. Forsyth v. Nationalist Movement, 505 U.S. 123 (1992). The Bible Club’s innocent speech cannot be prohibited merely because of the adverse reaction and subsequent culpable conduct of its opponents. As the Supreme Court declared this term, the Equal Access Act dictates that private speech from a religious viewpoint must be allowed in a limited public forum. Good News Club v. Milford Cent. Sch., No. 99-2036, 2001 U.S. LEXIS 4312, at *38 (June 11, 2001). Any failure to do so would be hostility toward religion.

The Bible Club’s statutory right to equal access under the act has been unjustly trampled upon due to the improper actions of other students. This case is a prime

illustration of a heckler’s veto. Pulaski has restricted the Bible Club’s speech because of the conduct of other students who are opposed to the club. Courts, realizing the injustice in punishing or restraining an innocent group for the misconduct of others, have continually prohibited heckler’s vetoes from restricting speech. Forsyth v. Nationalist Movement, 505 U.S. 123 (1992); Chicago Acorn v. Metro. Pier and Exposition Auth., 150 F.3d 695 (7th Cir. 1998); Nelson v. Streeter, 16 F.3d 145 (7th Cir. 1994); Doe v. Small, 964 F.2d 611 (7th Cir. 1992). In Forsyth, the Supreme Court refused to allow Forsyth County to charge an organization a higher permit fee for a march merely because there was a high likelihood of hostile opponents to the march and therefore a need for increased security. 505 U.S. at 134-35. In Nelson, this Court concluded that an artist whose painting unintentionally provoked rioters to violence is still entitled to display his art, declaring that "[t]he rioters are the culpable parties, not the artist." 16 F.3d at 150. Forbidding the Bible Club’s portrait of the cross because of the behavior of those opposed to it permits a heckler’s veto. This the school cannot do, and the district court erred in allowing it to do so.

B. Even if the school is allowed to engage in editorial judgment, Pulaski must

still comport with the Equal Access Act, which requires that the Bible Club have the opportunity to paint the cross on the mural.

Nor can the heckler’s veto be overcome by a claim that this is government speech, and that therefore the government can limit speech in response to the disruptive actions of others. Here, the government is not in the business of speech. Allowing a limited open forum for student clubs does not make the government a speech producer. Mergens, 496 U.S. at 250. The Supreme Court declared that "secondary school students are mature enough and are likely to understand that a school does not endorse or support student speech that it merely permits on a nondiscriminatory basis." Id. The Supreme Court further stated that "schools do not endorse everything they fail to censor." Id. This Court emphasized that while it is the government’s duty to remove the impression that it is endorsing any speech that it allows or induces, the government’s laxity in removing this impression is not a justification for restricting private speech. Doe v. Small, 964 F.2d 611, 630 (7th Cir. 1992) (Easterbrook, J., concurring).

While it is true that the government can exercise editorial judgment when it is in the business of speech, there is simply no government speech involved in this case. Chicago Acorn, 150 F.3d at 701. This Court should refuse to restrict the Bible Club’s innocent activities and speech simply because Principal Pulaski fears some may perceive an Establishment Clause violation. In a prior Seventh Circuit case that involved a religious display, Judge Easterbrook asserted that "hecklers cannot silence political speech in a public forum, [and] obtuse observers cannot silence religious speech in a public forum." Doe, 964 F.2d at 630 (Easterbrook, J., concurring). The obtuse observers discussed in Doe are analogous to the obtuse observers that Pulaski allowed to silence the Bible Club. Indeed, during the past term, the Supreme Court of the United States applied a modified heckler’s veto doctrine in Establishment Clause jurisprudence, proclaiming that the religious activities of a private group could not be proscribed on the basis of a heckler’s veto. Good News Club v. Milford Cent. Sch., No. 99-2036, 2001 U.S. LEXIS 4312, at *37 (June 11, 2001).

The very context in which the present controversy has arisen militates against the conclusion that the mural represents school speech. Any reasonably informed observer would know that all the murals were created by student clubs. Therefore, the Bible Club cannot be singled out for censorship. To allow all other clubs to speak and yet to censor the Bible Club is, again, to engage in the very censorship that the Equal Access Act is designed to eliminate from our public schools.

 

CONCLUSION

For the foregoing reasons, we respectfully request that this Court reverse the district court’s ruling that the mural is not a meeting protected by the Equal Access Act.

Respectfully submitted

this 7th day of July, 2001.

 

________________________

Robert K. Skolrood
Counsel of Record for Amici Curiae
The National Legal Foundation
2224 Virginia Beach Blvd., Ste. 204
Virginia Beach, VA 23454
(757) 463-6133

 

 


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