Garnett ex rel. Smith v. Renton School District No. 403

987 F.2d 641

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 8, 1993
• Docket: No. 91-36036
• Status: Published

Opinions

FARRIS, Circuit Judge:

FACTS

In the fall of 1984, several students at Lindbergh High School in Renton, Washington, sought permission from school officials to form a religious club. The students requested permission to meet on school grounds before school for prayer, Bible study and religious discussion. The school district permits a number of other student groups to meet on school grounds during noninstructional time, including such groups as the Pep Club, Chess Club and Ski Club. The school district denied the students’ request, citing its view that such meetings would violate both the Washington state and federal Constitutions.

The students brought suit claiming that the district’s refusal to let them meet on school grounds violated their statutory and constitutional rights to equal access. The students argued that the Equal Access Act, 20 U.S.C. §§ 4071-4074 (1988), requires Lindbergh to allow them to meet at school on the same basis as other noncurriculum related clubs. The students also argued that the Free Speech, Free Exercise, Free Association, Equal Protection and Due Process Clauses protect their right to meet on school grounds.

The Equal Access Act provides that [i]t 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 the religious, 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 noncurriculum related student groups to meet on school premises during noninstruc-tional time.” Id. at § 4071(b).

The district court held that the Equal Access Act does not apply to Lindbergh because the school did not have a “limited open forum”. Garnett v. Renton School District #403, 675 F.Supp. 1268, 1274 (W.D.Wash.1987). The court held that the Washington State constitution bars the school officials from permitting religious organizations to meet on school property. The district court rejected all of the students’ constitutional claims. Id. at 1276.

We affirmed. 865 F.2d 1121, modified, 874 F.2d 608 (9th Cir.1989). We held that allowing the students to meet at school would violate the Establishment Clause. The Supreme Court vacated our decision and remanded for reconsideration in light of its holding in Board of Education v. Mergens, 496 U.S. 226, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990). Garnett v. Renton School District, 496 U.S. 914, 110 S.Ct. 2608, 110 L.Ed.2d 628 (1990).¹ We remanded to the district court.

The district court, 772 F.Supp. 531, concluded that by allowing several “noncurri-culum” related student groups to meet on school grounds, the school had created a limited open forum. The court held, however, that the Washington State Constitution precludes the Act from requiring the use of school premises by a religious club. The court reasoned that the EAA does not preempt the Washington State Constitution because the Act does not require actions that would abridge “constitutional” rights or violate the law. The students appeal the district court’s decision on remand.

We Reverse.

DISCUSSION

This appeal involves questions of law which we review de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

Under the EAA, “if a public secondary school allows only one ‘noncurriculum related student group’ to meet, the Act’s obligations are triggered and the school may not deny other clubs, on the basis of the content of their speech, equal access to meet on school premises during noninstruc-tional time.” Mergens, 496 U.S. at 236,110 S.Ct. at 2364. The district court concluded that there were eleven noncurriculum related student groups at Lindbergh High School. The court therefore found that the school had a “limited open forum” under the EAA.

Nonetheless, the district court held that Lindbergh could not permit the students to meet because the Washington State Constitution prohibits student religious meetings on school grounds. The court held that the EAA did not preempt the Washington State Constitution.

The Supremacy Clause provides that if federal law conflicts with state law, federal law prevails:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Article VI, section 2. The Supreme Court has explained that,

[i]n the absence of explicit statutory language signaling an intent to preempt [state law], we infer such intent where ... the state law at issue conflicts with federal law, either because it is impossible to comply with both ... or because the state law stands as an obstacle to the accomplishment and execution of congressional objectives....

Northwest Central Pipeline v. Kansas Corp. Com., 489 U.S. 493, 509, 109 S.Ct. 1262, 1273, 103 L.Ed.2d 509 (1989). The EAA does not explicitly preempt state law. The district court held that because the Washington constitution does not conflict with the EAA, the court would not infer that Congress intended to preempt state law.

The district court held that sections 4071(d)(5) and (7) of the Act allow school officials to comply with state statutory and constitutional provisions. Sections 4071(d)(5) and (7) provide that “[njothing in [the EAA] shall be construed to authorize the United States or any State or political subdivision thereof ... (5) to sanction meetings that are otherwise unlawful; [or] ... (7) to abridge the constitutional rights of any person.” The district court held that religious group meetings were “otherwise unlawful” and unconstitutional within the meaning of sections 4071(d)(5) and (7), because such meetings violate the Washington constitution.

The students argue that sections 4071(d)(5) and (7) do not allow state law to override the EAA’s requirements. They argue that Congress intended section 4071(d)(5) merely to clarify that the Act does not require school districts to permit student meetings that would be illegal for reasons other than their religious nature. They argue that section 4071(d)(7) only clarifies Congress’ intent that the Act not be construed to limit federal constitutional rights.

The dispute over the applicability of the EAA thus turns on the meaning of §§ 4071(d)(5) and (7). We begin with the plain language. Mergens, 496 U.S. at 237, 110 S.Ct. at 2365. Section 4071(a), the central provision of the Act, prohibits “any public secondary school” which receives federal funding and which has a limited open forum from denying religious student groups equal access. Sections 4071(d)(5) and (7) are designated as rules of construction, not exceptions to the Act. As such, they instruct the court how to interpret the Act’s central command that schools not discriminate against religious speech.

While section 4071(a) prohibits discrimination against a group on account of the religious character of its speech, it does not protect speech that is “otherwise unlawful” (section 4071(d)(5)). The school board’s contention that section 4071(d)(5) permits states to bar meetings on campus because of their religious content renders the term “otherwise” meaningless. “Otherwise” refers to the protection afforded religious speech by section 4071(a). Thus, the phrase “otherwise unlawful” in section 4071(d)(5) is most logically understood as authorizing schools to bar meetings that are unlawful for reasons other than their religious content.

We must read section 4071(d)(7) in the context of the entire Act. The provisions of sections 4071(c) and (d) are almost uniformly concerned with preventing an unconstitutional application of the Act. See section 4071(c)(1) (requiring that any religious meetings be voluntary); sections 4071(c)(1), (3) and (5) (prohibiting schools from participating in or sponsoring religious meetings); sections 4071(d)(1), (2), and (4) (prohibiting schools from influencing the content of prayer, requiring prayer, or forcing school personnel to attend meetings); section 4071(d)(3) (barring the use of public funds for religion beyond the incidental cost of providing space for meetings). None of these provisions purports to allow exceptions to the Act. Rather, they explicitly exclude from the Act’s protection “the three main evils against which the Establishment Clause was intended to afford protection: ‘sponsorship, financial support, and active involvement of the sovereign in religious activity.’ ” Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971) {quoting Walz v. Tax Commission, 397 U.S. 664, 668, 90 S.Ct. 1409, 1411, 25 L.Ed.2d 697 (1970)). Congress hardly inserted a sweeping exception to the Act within its perimeters. Section 4071(d)(7) is a “savings” clause that protects against reading implications into the EAA which might abridge federal constitutional rights, either for persons and schools within its scope, or for those outside its scope, such as secondary school teachers and elementary school students.

The Supreme Court confronted a similar task of statutory interpretation in Mergens. See 496 U.S. at 237, 110 S.Ct. at 2365. The plaintiffs requested permission from school' officials to form a Christian club at West-side High School. Westside denied the request and the students brought suit, claiming that the denial violated their rights under the EAA and the United States Constitution. The school board claimed that it did not have a limited open forum because all of its clubs were curriculum related. See id. at 232-33, 110 S.Ct. at 2362-63.

The Supreme Court looked to the legislative purpose of the Act to determine the meaning of “noncurriculum related”. The Court found that the Act reflected “at least some consensus on a broad legislative purpose.” Id. at 239, 110 S.Ct. at 2366. The Court noted that Congress “intended [the Act] to address perceived widespread discrimination against religious speech in public schools,” and that “its sponsors contemplated that the Act would do more than merely validate the status quo.” Id. The Court held that “[a] broad reading of the Act would be consistent with the views of those who sought to end discrimination by allowing students to meet and discuss religion before and after classes.” Id.

The school board argues that Mergens does not control our interpretation of sections 4071(d)(5) and (7) because the decision only determined the meaning of “noncurri-culum related”. The Court did more than that. It determined that the entire Act must be read to effectuate a broad Congressional purpose.

The Court rejected a narrow interpretation of “noncurriculum related clubs” because it would have resulted either in almost no schools being subject to the Act, or it would have permitted schools to strategically evade the Act. Id. at 244, 110 S.Ct. at 2368. Similarly, the school board’s interpretation of 4071(d)(5) and (7) would likely-exempt from the Act many schools in the Ninth Circuit and in the country. The EAA would apply only in states that did not have laws that prohibited religious student groups from meeting on school grounds. Many states have establishment clauses that are more restrictive than the federal establishment clause. See Note, Beyond the Establishment Clause: Enforcing Separation of Church and State Through State Constitutional Provisions, 71 Va.L.Rev. 625, 632-33 (1985). These state constitutional provisions might bar religious meetings on school grounds. States that are currently subject to the Act could “evade the Act” by enacting laws or interpreting their state constitutions to prohibit religious meetings on school grounds. Under the school board’s interpretation of “otherwise unlawful”, a school could prohibit religious speech on the basis of any legal prohibition, not just state law. Thus, cities and other political subdivisions of the state could circumvent the Act as well. The Court rejected similar results in Mer-gens, 496 U.S. at 244, 110 S.Ct. at 2368.

The Court’s finding of a broad legislative purpose suggests that Congress intended to preempt state law: “Congress clearly sought to prohibit schools from discriminating on the basis of the content of a student group’s speech, and that obligation is the price a federally funded school must pay if it opens its facilities to noncurriculum related student groups.” Mergens, 496 U.S. at 241, 110 S.Ct. at 2367. The Act permits schools to avoid its obligations, but only at a price. They must either reject federal funding or close the school’s limited open forum. See id. If the EAA did not preempt state law, than states could freely opt out of its requirements. Congress did not intend to permit the states to thwart its objectives by outlawing speech based on its religious content, and thereby discriminate on that basis.

Both the students and the school district rely on the Act’s legislative history to support their interpretation. We have reviewed the legislative history of the EAA and agree with the Supreme Court that it is “less than helpful”. 496 U.S. at 238, 110 S.Ct. at 2365. The bill that led to the Act went through a series of revisions. During the negotiations that led to the Act's passage, many of the legislators changed positions. Thus the statements of individual Senators do not necessarily reflect Congressional purpose. Id.; see also Laycock, Equal Access and Moments of Silence: The Equal Status of Religious Speech by Private Speakers, 81 Nw.U.L.Rev. 1, 37-39 (1986).

CONCLUSION

State constitutions can be more protective of individual rights than the federal Constitution. See, e.g., PruneYard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S.Ct. 2035, 2040, 64 L.Ed.2d 741 (1980). However, states cannot abridge rights granted by federal law. Northwest Central Pipeline, 489 U.S. at 509, 109 S.Ct. at 1273. Regardless of whether we agree with the Congressional balancing of state sovereignty and federal concerns, “[o]ur task is to apply the text, not to improve on it.” Mergens, 496 U.S. at 241, 110 S.Ct. at 2367 (citations omitted). The EAA provides religious student groups a federal right. State law must therefore yield.

The students have a right under the EAA to meet on school property on the same basis as other noncurriculum related clubs. Because our decision is controlled by the EAA, we need not reach the students’ federal constitutional claims.

Reversed.

Each side shall bear its own costs.

1 . Because our decision is controlled by the EAA, we do not reach the students’ claim that their rights under the Free Speech and Free Exercise Clauses of the First Amendment were violated. We need not revisit our prior resolution of these issues in Garnett v. Renton School Dist. No. 403, 865 F.2d 1121, modified, 874 F.2d 608 (9th Cir.1989), because, that decision having been vacated by the Supreme Court, it "has no prece-dential authority whatsoever.” Durning v. Citibank, N.A., 950 F.2d 1419, 1424 n. 2 (9th Cir.1991). This decision entirely replaces it.