Ceniceros ex rel. Risser v. Board of Trustees of the San Diego Unified School District

66 F.3d 1535, 95 Daily Journal DAR 12973, 95 Cal. Daily Op. Serv. 7557, 1995 U.S. App. LEXIS 27566, 1995 WL 569636

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 28, 1995
• Docket: No. 94-55257
• Status: Published

Opinions

Opinion by Judge BRUNETTI; Dissent by Judge LAY.

BRUNETTI, Circuit Judge:

Melanie Rose Ceniceros sued the Board of Trustees of the San Diego School District (the District) seeking declaratory and injunc-tive relief and damages. Her complaint alleged that, by denying her religious club the opportunity to meet during lunch as other clubs were allowed to, her high school, University City High School (UCHS), violated her rights under the Equal Access Act (Act), 20 U.S.C. §§ 4071-74 (1990), and the Free Speech and Free Exercise Clauses of the Constitution. The parties brought cross-motions for summary judgment. The district court granted the District’s motion and denied Ceniceros’. We have jurisdiction under 28 U.S.C. § 1291,¹ and we reverse.

I.

University City High School is a public secondary school, located in the San Diego Unified School District, which receives federal financial assistance. Classroom instruction begins at 7:25 a.m. All students at UCHS have the same lunch period, from 11:30 a.m. to 12:10 p.m. daily, during which time they are free to leave the school campus. No classes are held during lunch. Classroom instruction resumes at 12:15 p.m. and ends at 2:10 p.m.

In December 1992, Ceniceros, then a senior at UCHS, asked the vice-principal if she could form a student religious club that would meet in an empty classroom during the school lunch period. The vice-principal allowed the club’s formation, but denied the request to use classrooms during the lunch period.

Several other voluntary, noncurriculum related student groups and clubs meet during the lunch period. These include the African American, African Friends, Hackey Sac, and Surf clubs, the California Scholarship Federation, the Movimiento Estudiantil Chicano Aztlan, and the Organization for Nature Conservation. It is unclear from the record whether these other groups meet in classrooms, or at some other location on school premises.

Ceniceros filed the present action seeking declarative and injunctive relief and damages for violation of the Act and her rights under the Free Speech and Free Exercise Clauses of the First Amendment. The parties brought cross-motions for summary judgment. The district court granted the District’s motion on all counts, and denied Cen-iceros’. Ceniceros timely appeals grant of the District’s motion.²

II.

All issues presented are issues of law, reviewed de novo. Tipton v. University of Hawaii, 15 F.3d 922, 923 (9th Cir.1994).

III.

The statutory issue in this case is whether UCHS’ lunch hour is “noninstructional time” within the meaning of the Equal Access Act. The Act provides, in pertinent part:

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

20 U.S.C. § 4071(a). A “limited open forum” exists “whenever [a] school grants an offering to or opportunity for one or more noncur-riculum related student groups to meet on school premises during noninstructional time.” 20 U.S.C. § 4071(b). The Act in turn defines noninstructional time as “time set aside by the school before actual classroom instruction begins or after classroom instruction ends.” 20 U.S.C. § 4072(4).

The parties agree that: UCHS is a public secondary school receiving federal funding; other noncurricular clubs meet during lunch hour; and Ceniceros’ noncurricular club possesses the characteristics that bring it within the Act’s “safe harbor” provision, 20 U.S.C. § 4071(c). The District argues, however, that its denial of lunchtime access to Cenice-ros did not violate the Act because UCHS’ lunch hour does not fall within the Act’s definition of “noninstructional time.” We disagree.

The plain meaning of “noninstructional time,” as defined in § 4072(4), includes the lunch period at UCHS. At UCHS, classroom instruction begins at 7:25 a.m. and ends at 11:30 a.m.; it resumes at 12:15 p.m. and continues until 2:10 p.m. The parties specifically stipulated that no classroom instruction occurs during the school’s lunch hour. In fact, students are not even required to remain on campus during this time. Accordingly, we find that the school has “set aside” the lunch hour as non-classroom, noninstruc-tional time, which occurs “after actual classroom instruction” ends for the morning session and “before actual classroom instruction begins” for the afternoon.

Although the parties also offer arguments based on legislative history of the Act, we find those arguments unhelpful. See Douglas Laycoek, Equal Access and Moments of Silence: The Equal Status of Religious Speech, 81 Nw.U.L.Rev. 1, 34 n. 163 (“Roughly equal numbers of statements on the floor of Congress go each way on the issue of activity periods during the day.”). Moreover, because the plain meaning of “noninstructional time” is unambiguous, we need not look to the Act’s legislative history. See Rumsey Indian Rancheria of Wintun Indians v. Wilson, 41 F.3d 421, 427 (9th Cir.1994), amended on denial of rehearing, 64 F.3d 1250 (9th Cir.1994) (citing United States v. Taylor, 487 U.S. 326, 344-46, 108 S.Ct. 2413, 2423-25, 101 L.Ed.2d 297 (1988) (Sealia, J., concurring)).

Our straightforward reading of § 4072(4) is in accord with the purpose of the Equal Access Act, and the principles for interpreting it set forth by the Supreme Court in Board of Education v. Mergens, 496 U.S. 226, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990). In Mergens, the Court noted that the Act reflects “a broad legislative purpose,” id. at 239, 110 S.Ct. at 2366, and repeatedly defined the purpose of the Act in broad terms. See, e.g., id. at 238, 110 S.Ct. at 2365 (“[T]he purpose of granting equal access is to prohibit discrimination between religious or political clubs on the one hand and other noncurriculum-related student groups on the other[.]”); id. at 241, 110 S.Ct. at 2367 (“... Congress clearly sought to prohibit schools from discriminating on the basis of the content of a student group’s speech[.]”); id. at 249, 110 S.Ct. at 2371 (“Congress’ avowed purpose [was] to prevent discrimination against religious and other types of speech[.]”).

To fulfill the Act’s broad purpose, the Court held that the Act must be given a “broad reading.” Id. at 239, 110 S.Ct. at 2366. Only by interpreting “noninstructional time” to include lunch periods can we adhere to the Supreme Court’s instruction and have our interpretation be “consistent with Congress’ intent to provide a low threshold for triggering the Act’s requirements.” See id. at 240, 110 S.Ct. at 2366.

Although we hold that the lunch period at UCHS is noninstructional time, and that UCHS therefore impermissibly denied Cen-iceros’ group the opportunity to meet during that time, we emphasize that Ceniceros’ group’s right to meet is defined by the extent to which other groups were permitted to meet. It is unclear from the record, and indeed neither party could definitively answer at oral argument, whether the student groups that met at lunch met in classrooms. If other noneurriculum groups were permitted to meet in classrooms, UCHS should not have denied classroom access to Ceniceros’ group. Likewise, if those groups met on school grounds, but not in classrooms, Cen-iceros’ group was entitled to similar access under the Act.

Our decision today does not necessarily preclude school districts from disallowing religious groups from using school premises for meetings during lunch periods. The Act is about equal access. If a school district wanted to prohibit religious groups from meeting during lunch, the school need only make its prohibition neutral, so that all noncurricu-lum-related groups are barred from meeting at lunch. Cf. Mergens, 496 U.S. at 241, 110 S.Ct. at 2367 (The Act’s obligation that schools treat student groups in a nondiscriminatory manner “is the price a federally funded school must pay if it opens its facilities to noncurriculum-related student groups.”) (emphasis added). Nor would this interpretation prevent a school from making affirmative statements to dispel any mistaken impression of its endorsement of the religious club. See id. at 270, 110 S.Ct. at 2382 (Marshall, J., concurring in judgment) (arguing that school has an affirmative duty to disclaim endorsement of religious club); Laycock, Equal Access and Moments of Silence, 81 Nw. U.L.Rev. at 18 (suggesting that school can explain its open forum policy to avoid confusion about school endorsement of religious groups). Today we hold only that UCHS wrongfully discriminated against Ceniceros’ student religious group by denying them equal access to school facilities during nonin-structional time, such as UCHS’ lunch period.³

IV.

The District argues, and the district court found, that if the Equal Access Act requires that religious groups be allowed to meet during the lunch period, the Act violates the Establishment Clauses of both the federal and California Constitutions.

A.

With respect to the federal Constitution, the Supreme Court has recently addressed strikingly similar Establishment Clause challenges. In Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981), the Supreme Court held that, when a state university makes its facilities generally available, allowing equal access to a student religious group would not violate the Establishment Clause. Id. at 271-75, 102 S.Ct. at 275-77. Specifically, the Court reasoned that “an open-forum policy, including nondiscrimination against religious speech, would have a secular purpose and would in fact avoid entanglement with religion.” Id. at 271-72, 102 S.Ct. at 275-76. The message of an open-forum policy is one of neutrality, not endorsement, while discriminating against religious groups would demonstrate hostility, not neutrality, toward religion. Mergens, 496 U.S. at 248, 110 S.Ct. at 2370-71; see also Lamb’s Chapel v. Center Moriches School Dist., - U.S.-,-, 113 S.Ct. 2141, 2148, 124 L.Ed.2d 352 (1993) (making school facilities available for religious group to show film does not violate Establishment Clause).

In Mergens, the Supreme Court applied this reasoning to the high school setting, specifically within the context of the Act’s equal access requirements to after-school meetings. Mergens, 496 U.S. at 248, 110 S.Ct. at 2370-71. The Court emphasized the “crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercises Clauses protect.” Id. at 250, 110 S.Ct. at 2372 (emphasis in original).

The Court also enumerated several other factors upon which it relied to reach its conclusion that the Act passed constitutional muster. It reasoned 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 nondiseriminatory basis.” Id. The Court indicated that deference was due to the Act because it is the considered decision of a coequal branch. Id. at 251, 110 S.Ct. at 2372. The Court also pointed out that attendance at the meetings is purely voluntary since “no formal classroom activities are involved and no school officials actively participate.” Id. Any residual risk of mistaken inference of endorsement, the Court suggested, could be diffused by official school statements disavowing any endorsement. Id. Finally, the Court noted that the broad spectrum of student clubs at a school ensured the possibility of counterbalance against any perception of a message of official endorsement of religion. Id. at 252,110 S.Ct. at 2373. All of these considerations are present in this case and compel the same result as Mergens, regardless of the fact that the meetings in this case would occur at lunchtime instead of after school.

The District attempts to distinguish Mer-gens by pointing to language in the text of the opinion that refers to the fact that the meetings at issue in Mergens occurred after school. The Court stated that “a school that permits a student-initiated and student-led religious club to meet after school, just as it permits any other student group to do, does not convey a message of state approval or endorsement of the particular religion.” Id. This reference to the timing of the meetings at issue in Mergens merely provides factual context; it does not suggest that the timing of the meetings was an important factor upon which the Court based its decision.

The only timing issue with which the Court concerned itself in Mergens is the Act’s restriction of meetings to “noninstructional time.” Id. at 251, 110 S.Ct. at 2372. The Court found this limitation significant because it avoids the problem of mandatory attendance requirements, which the Court had previously struck down. Id. (citing Edwards v. Aguillard, 482 U.S. 578, 584, 107 S.Ct. 2573, 2577-78, 96 L.Ed.2d 510 (1987)). Since the lunchtime meetings proposed by Ceniceros would resemble in every significant respect the meetings approved by the Court in Mergens, permitting Ceniceros’ group to meet during lunchtime would not violate the Establishment Clause.

The District’s other efforts to distinguish Mergens are also unpersuasive. The District, and the district court, attempt to distinguish Mergens by suggesting that, in contrast with after school meetings, “many students remain on campus” during lunchtime. The record does not reflect how many students are on campus after school as compared to the number during lunchtime. Even if there were a significant difference, however, the number of students who may observe speech does not affect their ability to distinguish between government-sponsored speech and student-sponsored speech, which is the “crucial difference.” Id. 496 U.S. at 250, 110 S.Ct. at 2371-72.

The District also argues that the presence of school employees required to monitor the meetings would create a risk of endorsement. Again, there is no indication in the record that school officials are more likely to be present during meetings that occur during lunch than meetings that occur after school. To the contrary, Administrative Procedure 6250, which was approved by the District and relied on by the vice principal who denied Ceniceros’ request, indicates that school monitors may be present at any meetings in a nonparticipatory capacity, regardless of when they occur. Moreover, the Court in Mergens specifically rejected the notion that “such custodial oversight of the student-initiated religious group ... [would] impermissi-bly entangle government in day-to-day surveillance or administration of religious activities.” Id. at 253, 110 S.Ct. at 2373-74.

The emphasis of the Court’s decision in Mergens was that student-sponsored religious speech is very different from government-sponsored religious speech and that secondary school students are mature enough to understand the difference between neutrality toward and endorsement of religion. These criteria, along with the other factors reviewed by the Court, compel our conclusion that UCHS’ neutral application of its lunchtime access policy would not violate the Establishment Clause.

B.

With respect to the California Constitution, the District argues that the “no preference clause” in the California Constitution, which is more potent than the federal Constitution’s Establishment Clause, provides a compelling reason for UCHS to restrict lunchtime access based on the religious purpose of the group wishing to meet. This argument is misguided. UCHS cannot defeat Ceniceros’ rights under the Act by reference to the California Constitution. Garnett v. Renton School Dist. No. 103, 987 F.2d 641, 645-46 (9th Cir.) (finding that the Act does not permit schools to bar religious meetings on the basis that use of school for religious meetings would violate state constitution), cert. denied, - U.S.-, 114 S.Ct. 72, 126 L.Ed.2d 41 (1993). It is axiomatic that “states cannot abridge rights granted by federal law.” Id. at 646.

V.

For the foregoing reasons, the judgment of the district court is REVERSED, and the case is REMANDED for further proceedings in accord with this opinion.

REVERSED and REMANDED.

1 . Ceniceros has graduated from high school since the time this action was filed. Consequently, her claims for injunctive and declaratory relief are moot, and only her claim for monetary damages survives. See Wilson v. State of Nevada, 666 F.2d 378, 380-83 (9th Cir.1982).

2 . Ceniceros has not separately appealed, and therefore we do not address, the district court’s denial of her motion for summary judgment.

3 . Since we find that the Act prohibited the District from precluding religious groups from meeting during lunch periods, we need not address Ceniceros’ Free Speech and Free Exercise claims. See Mergens, 496 U.S. at 247, 110 S.Ct. at 2370; Garnett, 987 F.2d at 643 n. 1.