BENDER v. WILLIAMSPORT AREA SCHOOL DIST.

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ORAL ARGUMENT OF JAMES MADISON SMART, JR., ESQ. ON BEHALF OF THE PETITIONERS

Chief Justice Burger: We will hear arguments now in Bender against Williamsport School.

Mr. Smart, you may proceed whenever you are ready.

Mr. Smart: Mr. Chief Justice, and may it please the Court:

The facts of this case are not extremely complicated, but they can be misunderstood.

This case does not involved teacher-led or government-prescribed religious activities.

Very simply, students from Williamsport Area High School, which we represent, wanted to meet during the extracurricular activity period.

The school was originally content to let them meet.

Then permission was withdrawn after the first meeting, but solely because the school's lawyer felt that allowing student meetings containing prayer and religious expression would violate the Establishment Clause.

Now, since the lawyer's belief was the only reason for the denial of meeting space in this case, the legal issue is very narrow and that is simply whether the Establishment Clause requires a high school to censor out the religious expression of private individuals after having first created an opportunity for students to engage in their own self-initiated activities and expression.

Unidentified Justice: Mr. Smart, do you think there is a jurisdictional question at all in this case?

Mr. Smart: No, Your Honor.

By that, do you mean by that--

Unidentified Justice: Well, Mr. Youngman and his--

Mr. Smart: --All right.

Unidentified Justice: --and his position in the case.

Did the Court of Appeals have jurisdiction, do you think?

Mr. Smart: In our opinion, they did, Your Honor, and the case is properly here.

It is a valid case or controversy.

However--

Unidentified Justice: And, why do you think they have jurisdiction?

Mr. Smart: --Well, it was our judgment that Mr. Youngman probably stood in the same position as Mrs. Bashdi McCollum in the McCollum case in 1948 as a parent.

But, if the Court should decide that Mr. Youngman does not have standing, the correct disposition of this case would be to vacate the Third Circuit decision and reinstate the decision of the district court.

Now, it is important to understand that in this--

Unidentified Justice: While you are on that subject, Mr. Youngman is no longer a member of the School Board, is he?

Mr. Smart: --Mr. Youngman is no longer a member of the School Board, as I understand it.

Unidentified Justice: And, he no longer has any children in the school?

Mr. Smart: He has a child in the Williamsport Area High School.

Unidentified Justice: How old?

Mr. Smart: I believe his child is in the ninth grade, if I am not mistaken.

Unidentified Justice: Now, how does that bear on the issues.

You sued him in his official capacity, as I understand it.

Mr. Smart: Yes, Your Honor.

Unidentified Justice: Was there any framing of liability against him individually in any sense?

Mr. Smart: Not that I am aware of, Your Honor.

Unidentified Justice: How is it relevant that he has got a child in the school.

Could any parent have appealed this judgment?

Mr. Smart: Well, Your Honor, in reviewing the McCollum case, it appeared that that was the case, but we would be quite content--

Unidentified Justice: In the McCollum case, wasn't there an allegation that the child was being offended in some way by these practices?

Nobody says Mr. Youngmen's children are unhappy in any way, are they?

Is there anything in the record about his children?

Mr. Smart: --I don't know the details on that, Your Honor.

We felt he would be able to repair his case if that issued was raised.

If we were in error, we would be quite pleased to have the district court decision in this case reinstated since it was in favor of our clients.

Unidentified Justice: Why would that be the result?

There still wouldn't be a case of controversy even in the district court.

Mr. Smart: Yes, Your Honor.

He was a member of the School Board in the district court.

Unidentified Justice: He is no longer.

Mr. Smart: He is no longer a member of the School Board.

Unidentified Justice: Well, I know, but suppose the Court of Appeals said a piece of controversy has just washed out, wouldn't it have directed the district court to dismiss the case?

Mr. Smart: No, Your Honor, I don't believe so.

I believe it would have been a valid decision at the district court level since all parties were properly represented.

Unidentified Justice: Well, it might have been a valid decision at the time the district court rendered it, but I think our practice, since the time of the Munsingwear case, you know, some years ago, has been to say if it becomes moot on appeal, the whole thing washes out.

In other words, you would simply go back and there would be no district court decision, you would have no Court of Appeals decision.

Mr. Smart: Well, if that were the case, then the Court of Appeals would have two options if that were the law, Your Honor.

One would be to treat it as a case or controversy that is capable of repetition, yet evading review, or to wash the whole thing out.

Unidentified Justice: Why not, Mr. Smart?

Was not the vote against Mr. Youngman's position in the Board itself eight to one?

Mr. Smart: I believe that is correct, Your Honor.

I believe that--

Unidentified Justice: So, he had no support for his position at all.

Mr. Smart: --No, Your Honor, he did not.

Unidentified Justice: Of course, the School Board doesn't decide the constitutional questions with finality, do they?

Mr. Smart: No, Your Honor, however, they do decide what course the School District takes and the Respondent is here in the capacity as an original member of this lawsuit against whom we sought individual liability, including attorney's fees, and he has represented that he is in this lawsuit at this point as a parent.

Unidentified Justice: So, he could have been a plaintiff in the case originally?

Mr. Smart: Yes, Your Honor.

That is our view of the McCollum case.

Unidentified Justice: So, you think he is still in the case?

Mr. Smart: We believe he is still in the case and we believe it is still a valid case or controversy.

It is important to understand that in this case the record shows that the school did not simply make available certain specified activities to the students during this activity period.

The school did not say, students, you can do this, this, or this, take your pick of those.

Instead, the school said to the students, students, you decide what you will do during the activity period.

Unidentified Justice: Is that the same as the Widmar factual setting?

Mr. Smart: We think that constitutionally it is indistinguishable, Your Honor.

Unidentified Justice: I am speaking narrowly.

In the Widmar case did the students decide what it was they wanted to talk about?

Mr. Smart: That is exactly correct, Your Honor.

Unidentified Justice: If they wanted to advance socialism, they could do it?

Mr. Smart: Yes, Your Honor.

Unidentified Justice: They were free entirely, weren't they?

Mr. Smart: They were free entirely to conduct their meetings as they saw fit.

We believe that the district court findings in this case, that that was the case in the Williamsport Area High School, and are correct; that the School District--

Unidentified Justice: Did they have to do something?

Did they have to go outside and sit on the steps?

Mr. Smart: --No, Your Honor.

The only reason they couldn't do that is because the school requires them to remain in the building, as I understand it, and that is part of the reason for having all the activities, as I understand it, inside the building unless perhaps there is special permission to go outside.

Unidentified Justice: You mentioned that some of these youngsters were in the ninth grade.

I think his present child was in the ninth grade.

Do you carry your argument to the junior high level in those schools which, at the junior high level, have a ninth grade?

Mr. Smart: Your Honor, our case concerns only age 14, grade nine through twelve.

Fourteen through 18 are the ages.

Unidentified Justice: Suppose, as in another school district, your high school consisted of grades ten, eleven and twelve and the junior high had nine as is the case in many communities.

Does your argument also carry you to the grade nine in those communities?

Mr. Smart: No, it... Well, it would depend on whether the school had created a free-speech opportunity for the students through some kind of self-initiated activity forum.

Unidentified Justice: Then you would go down to the first and second grades on that basis?

Mr. Smart: No.

Probably the closest you would get in elementary school to a student-initiated activity forum would be recess.

Unidentified Justice: Suppose they wanted to play chess.

They had a couple of chess prodigies and they formed a chess club in the fifth grade.

Does your argument apply?

Mr. Smart: I think that there is going to be... Of course, the Third Circuit and the Court of Appeals was concerned about the impressionability and age of students and I would have to frankly admit that I think there is some age at which any sort of religious activities going on may reasonably be interpreted by a student as having been sponsored by the school.

For instance, the case Judge Friendly decided involving the kindergarten students where there was a claim that they should be allowed to say a prayer before grace.

If the teacher leads them in that prayer, why, it is not going to be a voluntary prayer.

At that age, nothing is voluntary to those students unless they are maladjusted students.

Unidentified Justice: Mr. Smart, in this case, a faculty member was present at the Petros meetings.

Mr. Smart: That is correct.

Unidentified Justice: But, not participating, is that the record evidence?

Mr. Smart: That is exactly the record evidence, Your Honor.

Unidentified Justice: Does the record disclose whether the teachers had been instructed not to actively participate?

Mr. Smart: The record does not disclose that, although I think it is clear that that is what did happen.

Unidentified Justice: Would your conclusion be the same if the teacher had actively participated in the meeting?

Mr. Smart: No, Your Honor.

We believe that the crucial constitutional distinction is the distinction between state action or government action and individual action and that the only safe harbor of constitutional analysis is that distinction between is the government acting in promoting or conducting this activity or are private individuals acting and what is the government's role?

We must look at the government's role.

Unidentified Justice: Mr. Smart--

Mr. Smart: Yes, Your Honor.

Unidentified Justice: --if that is your position, supposing the time that is devoted to this activity is needed to qualify the school for its academic diplomas and all the rest, and as I understand, you can't tell from the record whether it is counted or not.

The Court of Appeals said they couldn't tell whether the activity periods count toward the minimum requirement for powers of the school under the state statute.

Now, if it is required, then would it not be state action?

Mr. Smart: I don't see that that is a significant constitutional connection, Your Honor.

If the school in this case determined that they wanted to take credit for the activity period and to apply it, that certainly was their prerogative to do so because there is educational value even in self-initiated student activities.

However, there has been no adjudication--

Unidentified Justice: Well, if that is your position, why would it matter if the monitor was an employee of the school and who directed the activity?

I don't understand how you reconcile that with your response to Justice O'Connor's question.

Mr. Smart: --I am not sure I understand the question.

Unidentified Justice: The issue as you put it is whether it is state action or not.

Mr. Smart: That is right.

Unidentified Justice: And, if it is action that is necessary in order to have these students be qualified for a state diploma, why is it not state action?

Mr. Smart: Well, Your Honor, the state action consists of having them on the premises in the question that you put forth.

The state action you want to focus on is who is doing the religious activity, who is promoting it, who is sponsoring it, who is encouraging people to participate?

If the state is doing that, then it would violate the Constitution.

But, all the state has done here is to require these people to go to school, these students to be at school between certain hours.

Now, not everything that goes on in the school grounds during those hours makes them a captive audience to that activity on the school.

In fact, there is an inherent competition during this activity period between all of the activities that are going on.

A student has to choose what he will do during that time and he can even choose to start new activities during that time if he doesn't like any of the existing ones that are going on.

And, that is where we get the free-speech opportunity for these students that was created and that is how we draw the distinction between the government action in the case and the individual, private action in the case.

And, this is a crucial distinction.

Any departure from the distinction on government action versus private action will get us into constitutional difficulty.

It will get us into problems with excessive entanglement as we try to determine what students are doing at their meeting.

Are they too religious at this meeting, are they talking too much about religion, do they have an invocation, that sort of thing.

It will, furthermore, put us in the problem of having to tell these students that we cannot allow your meeting because, you see, if we have a neutral policy, then somebody might think that we are sponsoring your activity.

So, we can't have a neutral policy.

We have to have a non-neutral policy.

Unidentified Justice: Mr. Smart, to get back to the teacher, is there anything in the record to show what the teacher is there for?

Mr. Smart: Yes, Your Honor.

It is clear from the record the teacher was there and was instructed to simply be there in case of an emergency, to make sure the students were there and don't leave, that type of situation.

Unidentified Justice: Couldn't that have been accomplished in the hallways?

Mr. Smart: Couldn't it be accomplished in the hallways?

No, Your Honor, they have--

Unidentified Justice: I mean, if you stationed yourself in the hallways, you would find out whether or not they have left unless they jumped out a window.

Mr. Smart: --That is right, Your Honor, and that is an excellent point, Your Honor.

And, these students met in the cafeteria and the doors... if there were any doors... could be secured and the teacher could be in the hallway.

Unidentified Justice: Was the teacher monitoring or anything, that is what I want to know?

Mr. Smart: Your Honor, the teacher was grading tests during this time and I think that is pretty--

Unidentified Justice: Just needed, you say, in case something comes up.

Mr. Smart: --Well, Your Honor--

Unidentified Justice: Like what?

Mr. Smart: --Well, it is the duty of the School District to keep the students on the premises.

If a fight breaks out in any respect or the students start smoking marijuana or something of this nature... I would hope the students wouldn't do that... but that... if there is something like that occurs, the teacher is available to put a stop to that type of activity.

The--

Unidentified Justice: Mr. Smart, I thought the record indicated that the teacher was there to take the roll to make sure the students were present and then to remain because of disciplinary problems.

Mr. Smart: --There is a reference in the record to the teacher taking the roll, although I think that what actually happened was that the students signed a roster in actuality.

The school has a practice of having a teacher or school employee present in all areas of the building where there are students.

There are teachers stationed in the hallways between periods and during this activity period.

That doesn't mean they are monitoring with the speech of the students in the hallway or censoring the speech of the students, it simply means that they are there to take care of any need that might arise and to keep the students on the premises.

Unidentified Justice: Mr. Smart, in the Appendix, pages 95 and 96, which is a deposition apparently, there is a question:

"Do you know of any... are there any school board policies or regulations requiring adult supervision of student clubs or student groups? "

Answer:

"It doesn't need to be, it's covered fairly adequately in state law. "

"Student groups must be supervised by a professional employee of the commonwealth. "

As I understand your answer, you are interpreting the word "supervision" to mean just presence.

Mr. Smart: That is my understanding, Your Honor.

Unidentified Justice: Nothing else, just be there.

Mr. Smart: I think that fits the record in this case.

Unidentified Justice: Hardly the normal definition of supervision, is it?

Mr. Smart: Well, Your Honor, I think that if you look at the purpose of the activity period, it is not a curricular activity period, it is an extra-curricular period, and--

Unidentified Justice: But, what is the situation.

I don't think you answered Justice Stevens' question.

Does this hour count toward the required number of hours for the school to operate?

Mr. Smart: --It is my understanding that it does.

However, I would urge on the Court the fact that the School District itself calls these periods extra-curricular and I think the curricular and the non-curricular--

Unidentified Justice: Well, if it is required, what importance is the nomenclature the School Board puts on it as required or not?

Mr. Smart: --Well, I think the curricular/non-curricular distinction is a distinction this Court has used in the past.

For instance, in the School Library case, the Board of Education of Island Trees School District versus Pico the Court did not look at the hours the students had to be at the school.

The Court drew the distinction between the curricular activities and the non-curricular activities.

And, the position of this Court has been that students have free speech rights in the public school.

Our view of what the First Amendment requires in a public school is not a highly regimented, dictatorial type of situation outside of the classroom.

When students are in the hallways or in self-initiated activities or in the cafeteria, they are able to exercise free-speech rights.

The school created that right here.

All we are asking is that you not exclude one category, the religious student, from participation in that right simply because of the religiousness of it.

The Court has always held religious speech to the same protection as other forms of speech.

Mr. Chief Justice, if I could, I would like to reserve my remaining time for rebuttal.

Chief Justice Burger: Very well.

Mr. Fried?

ORAL ARGUMENT OF CHARLES FRIED, ESQ. AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

Mr. Fried: Thank you, Mr. Chief Justice, and may it please the Court:

The federal interest in this case is direct and substantial.

If the Court of Appeals is correct and the Respondents are correct that the Establishment Clause forbids what these students chose to do, wanted to do, that the school authorities were perfectly willing to have them do until the lawyer said otherwise, if the Court of Appeals is correct, then the subsequently enacted Equal Access Act is under grave constitutional doubt.

Unidentified Justice: Mr. Fried, may I ask if the federal interest would be adequately satisfied by a decision that the Appellant here didn't have standing to appeal and the judgment of the Court of Appeals was vacated?

Mr. Fried: The doubt which the Court of Appeals has raised about the act would still be there.

The decision itself would have been vacated and we would have to wait another case in which the matter would be litigated.

Unidentified Justice: But, you wouldn't have any doubt about how it would come out in the Third Circuit, would you?

Mr. Fried: I would not, sir.

The case is a puzzle.

Unidentified Justice: I am not sure of what your answer is.

You don't think the federal interest would be adequately vindicated by vacating the decision?

Mr. Fried: The cloud would still be there, Justice Stevens.

Unidentified Justice: So, you would rather have an advisory--

Mr. Fried: On the jurisdictional point, Justice Stevens, we do discuss that on page five of our brief.

It is fairly intricate.

I would like to proceed to the rather puzzling point in the Court of Appeals decision.

One wonders why in this case we have had the new notion introduced that free speech has got to be balanced against the Establishment Clause and, indeed, that free speech must yield to the Establishment Clause.

This case is not like Wallace and Jaffree last term or Stone v. Graham where the Court could point to a state statute which the Court concluded sought by direction or indirection to endorse religion.

And, indeed, this case is easier, should be viewed as easier than its older twin brother, Widmar against Vincent, because in Widmar the state had reasons of its own, quite apart from the federal Establishment Clause, for wishing to limit the access of those students to their religious activities.

Here, the controverted action... the controverted activity was entirely student initiated and there was no state objection apart from the lawyer's objection based on the federal Establishment Clause.

So, here we have no endorsement of religious and we have no conflict with a substantive state educational policy.

If you compare this case to cases of incidental, but permissible state involvement, tax exemption in Walz, school books and text books for parochial school students, or the use of the mall for a papal mass, one sees that the objective involvement of the state is virtually negligible.

So, how is it that this case is thought to present these agonizing constitutional difficulties.

Only on one premise and that is that high school students are different.

There is the fear that unlike the rest of us high school students are unable to discern the difference between neutrality and endorsement.

That is the fear which moved the Court of Appeals in its decision and that is the fear which is raised by the Respondents and the amici in this case.

Now, whether that fear is justified, whether high school students, indeed, are so immature that they cannot make the distinctions that the rest of us make was a question which was specifically addressed by Congress.

Hearings were held, testimony was taken, materials were examined.

And, Congress concluded that high school students... secondary school students was the word of the statute... are sufficiently mature to make the same distinctions that the rest of us make, that all of us have to make when that papal mass was held on the mall, to distinguish between state endorsement and state neutrality towards religion.

And, this Court has consistently held, most recently in Rostker and Goldberg, that where Congress has made a determination of a controverted matter of general fact, that disposition is entitled to the very highest degree of deference.

This case cannot be affirmed without controverting that congressional judgment about the maturity of secondary school students and rejecting the major premise of the Equal Access Act.

That is why I say the federal interest is direct and substantial.

Now, once that factual premise is accepted, high school students do understand the difference between neutrality and endorsement, this becomes the easiest of cases for we are far from any actual endorsement of religion in this case.

If the Court has no further questions, I thank you for its attention.

Unidentified Justice: --I do, Mr. Fried, if you have a moment.

You pointed out that this activity was entirely initiated by the students.

To what extent was that point litigated in the court below?

Did the Defendants take any discovery from the Plaintiffs of any kind or put in any evidence or did they just more or less go along with the Plaintiffs' case?

Mr. Fried: The Petitioners in this case made--

Unidentified Justice: Petitioners... I am sorry, go ahead.

Mr. Fried: --Petitioners made that allegation and it was not controverted and it was the basis for the District Court's judgment and for the judgement of the Court of Appeals.

Unidentified Justice: Was any pleading filed other than the one answer by the School Board as an entity?

Mr. Fried: Not that I am aware of.

Mr. Youngman didn't take any active part in the trial, is that correct?

Not that I am aware of.

Unidentified Justice: He surfaced at the time of the notice of appeal.

Mr. Fried: I am not sure of the answer to that, Justice Stevens.

Unidentified Justice: Mr. Fried, I know that you passed over the standing of jurisdiction question and referred to the passage in the Solicitor General's brief on the subject.

Is it your view that a student who does not allege a desire to attend a Petros meeting has standing to complain about the fact that the school is holding such meetings or permitting them if nothing else appears?

Mr. Fried: A student may allege an injury of a constitutional dimension if that student alleges that the going on of such activities in his school is, as it were, constitutionally offensive to that student.

But, I should point out that in this case the Petros students are still seeking to meet and the School Board is still preventing them from meeting.

Unidentified Justice: But, we don't know that any of them are before us, do we?

Mr. Fried: Of the Petros students?

Unidentified Justice: Right.

Mr. Fried: I believe that the Petros students are included among the class of Petitioners, Justice O'Connor.

Unidentified Justice: All right.

But, on the other side, where we are concerned about Mr. Youngman's standing?

Mr. Fried: I think the way to put that concern to rest would be to realize that the School Board is still preventing Petros from meeting.

True, it is acting like a disinterested stakeholder.

They are saying just tell us what we should do and we will do it, but as a stakeholder, they are currently precluding Petros from meeting and that, I should think, would be sufficient to create a case of--

Unidentified Justice: Mr. Fried, were they doing that at the time the appeal was taken?

They were not as I understand the record.

They permitted them to meet.

Mr. Fried: --But, after the appeal and at this moment--

Unidentified Justice: But, at the time the appeal was taken, what was the controversy?

Who was fighting with whom?

Was there any allegation that any non-Petros child was offended by these meetings?

Mr. Fried: --Mr. Youngman, I believe, at that time was claiming on his behalf as a parent--

Unidentified Justice: Where in the record do you find that?

Mr. Fried: --I cannot point you to the section of the record.

I believe that the record indicates that Mr. Youngman is a parent at the school and a former member of the School Board.

Thank you.

Chief Justice Burger: Mr. Youngman?

ORAL ARGUMENT OF JOHN C. YOUNGMAN, JR., ESQ. ON BEHALF OF THE RESPONDENTS

Mr. Youngman: Mr. Chief Justice, and may it please the Court:

I would like to read to you the first paragraph of the complaint in this case.

"This is an action for declaratory judgment and permanent injunction, brought by students in the Williamsport High School, through the parents of these students who are minors, and on behalf of all others similarly situated, against the Williamsport Area School District, hereinafter, "the District", the Superintendent of the District, The President, and each member of the School Board of the District, in their individual and official capacities. "

I was sued in my individual as well as my official capacity.

Unidentified Justice: And, did the judgment of the District Court grant any relief against you in your individual capacity?

Mr. Youngman: That is still to be decided, Justice Stevens.

Unidentified Justice: Well, if one reads the judgment, one cannot find any relief against you as an individual.

Well, you got a declaratory judgment.

There was a declaratory judgment entered, wasn't there?

Mr. Youngman: That is correct.

Unidentified Justice: And a judgment you didn't agree with.

Mr. Youngman: That is right.

Unidentified Justice: So, if you were going to obey the law, you were stuck with it.

Mr. Youngman: Unless I appealed.

Unidentified Justice: Yes.

And, if the judgment of the Court of Appeals in this case were reversed and the thing should go back to the District Court, saying that the procedure were consistent with the Constitution, is there any possibility then that the District Court might grant further relief against you such as attorney's fees?

Mr. Youngman: That is still to be decided.

There is a petition for attorney's fees against me and I contend that I am not liable individually for attorney's fees.

Unidentified Justice: You must be relying on Kentucky against Graham.

Mr. Youngman: What?

Unidentified Justice: You must be relying on Kentucky against Graham which clearly makes you not liable for fees.

Mr. Youngman: That is right.

Furthermore, I wish to correct a misimpression.

My son, who is my youngest, is a junior in the high school at the present time and not in the ninth grade.

I would like to... Furthermore, when standing became a question in this case, a successor of mine, who also happens to be my minister, agreed to become Respondent in this case.

Thus, I think there is a case for controversy.

I think it exists now and the notion that--

Unidentified Justice: Well, how did he ever become one?

Mr. Youngman: --Through Supreme Court Rule 28 as a successor in interest who agrees with my position.

Unidentified Justice: So, you think that here he is now a Respondent?

Mr. Youngman: That is right.

Unidentified Justice: And, that is in his capacity as a member of... in his official capacity of--

Mr. Youngman: That is right.

That is in his official capacity.

Unidentified Justice: --And, he can speak for the entire Board?

Mr. Youngman: No, that isn't the point.

But, a dissenting Board member has a right to speak too and has a right to challenge this adjudication.

Unidentified Justice: And to impose a liability for fees and costs on the Board itself, one person can do that?

Mr. Youngman: Well, I think I have the right to oppose that myself and I think--

Unidentified Justice: I say impose it.

Do you know of any other situation in which one member of a board has been able to litigate on behalf of the entire board when the rest of the board takes the opposite position?

Mr. Youngman: --No, I don't presume to litigate on behalf of the entire Board.

I took the appeal as one member of the Board who dissented from the decision not to appeal.

All right.

I would like to draw the Court's attention--

Unidentified Justice: May I just ask one more question and then I won't take any more of your time?

Mr. Youngman: --Yes.

Unidentified Justice: Prior to your filing the Notice of Appeal in this case, had you independently taken any action or had anybody on the School Board taken any action to resist the claim other than to file an answer?

Mr. Youngman: Yes.

We had counsel employed to fight this case.

Unidentified Justice: By fighting, did they take any depositions?

Mr. Youngman: Yes.

Unidentified Justice: Whose deposition did they--

Mr. Youngman: They took the deposition of the principal and--

Unidentified Justice: --The Plaintiffs' lawyer took the deposition of the principal.

Mr. Youngman: --Yes.

Unidentified Justice: Did the Defendants' lawyer take any depositions?

Mr. Youngman: No, but the Defendants' lawyer procured affidavits of both the principal and the superintendent, submitted papers and briefs, and argued the motion, the cross-motion for summary judgment.

So, yes, they did participate and the Defendants did participate.

I would like to call the Court's attention to the Joint Appendix.

At the bottom of page 63, Question:

"What is the policy of the Williamsport School District regarding student clubs and student meetings on public school grounds? "

Answer:

"Policy has been that any group of students that wishes a meeting within the confines of the building must meet with a faculty advisor. "

The point of this is that the forum as it existed, that Williamsport High School, prior to the decision of the District Court in this case, was that these clubs had advisors.

What is an advisor?

I direct your attention to page 83 of the record.

Unidentified Justice: Record of Appendix?

Mr. Youngman: Joint Appendix, excuse me.

Question:

"What sort of adult supervision does the school district generally require of student groups, you might have answered that before, but I don't remember. "

Answer:

"Any group of students that meets within the confines of the school district meets with an advisor, a paid coach or somebody of that nature, somebody that is on the faculty or somebody that is being hired by the Williamsport Area School District to perform the function. "

And, then on down the page,

"Generally speaking, do adult supervisors participate in the student group meetings or activities? "

Answer:

"I would say yes. "

"If they are an advisor, I would expect them to be there as somebody who's going to help the students. "

Question:

"Are there any student clubs for which the faculty advisor is instructed not to participate? "

Answer: "Not to my knowledge".

And, then a question is "Are these advisors hall monitors"?

Answer:

"I do not look upon advisors as hall monitors. "

"I think they are there to help the activities. "

That was the forum as it existed at Williamsport High School prior to the decision of the District Court in this case.

Petros did not meet until after the District Court... other than informally... until after the District Court decided this case and issued its order.

So, the District Court in this case altered the forum as it existed.

The relevance of that is that it is our position that the Petitioners must live with the forum as it existed and that forum was to have advisors.

Why?

Because the School Board wants to have structure and direction given in the educational process and that occurred in these clubs before the District Court's order in this case and it is our contention that that should occur and that by the District Court's altering the forum it puts... in effect, gives the Petitioners the right to negotiate as to how the forum will be and that is not consonant with the basic purpose of public education.

Unidentified Justice: Mr. Youngman--

Mr. Youngman: Yes.

Unidentified Justice: --You gave Joint Appendix 33 as a source.

I wonder if that could be--

Mr. Youngman: Eighty-three, excuse me.

Unidentified Justice: --Eighty-three.

Mr. Youngman: Eighty-three, Mr. Chief Justice.

Then, on page 70, question:

"If there were a group of students who came to the school, whether they were in a club or not, if they came into the school, are they required to be under the direct supervision of either a principal or a faculty member? "

Answer:

"If the students are meeting as a club, such as the Key Club, their advisor would be required to meet with them. "

"If they are not meeting as a club group, or are just in the building, we have principals and teacher monitors. "

Unidentified Justice: Mr. Youngman, why are you reading us these excerpts?

Is it to show that the District Court misconceived the factual setting?

Mr. Youngman: That is right.

Unidentified Justice: Did the Court of Appeals disagree with any of the District Court's factual--

Mr. Youngman: The Court of Appeals did not disagree, however, we believe that the Court of Appeals misread the nature of the forum.

Unidentified Justice: --Well, then, you are asking us to upset a finding made by the District Court and not upset by the Court of Appeals?

Mr. Youngman: That is correct.

That is correct.

Unidentified Justice: And, if we don't do that, do you lose or do you have other grounds?

Mr. Youngman: We certainly have other grounds, Justice White.

If there is... It is our position here that there is an Establishment violation, whether or not there was a public forum or not, and that is based on the nature of the forum as it existed at Williamsport High School.

We believe that when an advisor is present to help the students, this objectively is sponsoring and advancing religion.

In addition, I would point out on page 76 of the record with respect to this advisor the answer of Mr. Newton, the Principal, to Mr. Seevers' question.

"Do you make, you and the other principals or supervisors, actively check, attend, periodically, student groups to make sure that the speech which is going on is what you consider proper? "

Answer:

"I would say that the very rule that we have with regard to any group must meet with a faculty advisor gives us direct input as to what is going on. "

And, then, there is a stipulation in this case, found on page 144 of the Appendix with respect to this advisor situation.

There is... Reading in the middle of Paragraph One, Faculty Advisors:

"There is, however, an unwritten policy of the Williamsport Area High School that each student club have an adult advisor who is generally a faculty member or another employee of the school district. "

"In some circumstances, parents of student club members serve as adult advisors. "

And, then in the next paragraph:

"Selection is based upon the nature of the particular club and corresponding background of the faculty member. "

"Although students may request a particular adult advisor, the principal and his staff have final approval as to whom will serve as an advisor to a student club. "

Then, I would like to point out on page 65 of the Appendix that the nature of the forum as it existed in the question:

"Are there any political clubs such as the Young Democrats or Young Republicans, something of that nature. "

"No".

And,--

Unidentified Justice: Now, do you mean by that, if you will clear it up for me, that if the faculty member was there they can participate in the debate of the students on a political issue?

Mr. Youngman: --And do.

That is correct, Chief Justice.

Unidentified Justice: So, if the faculty advisor had republican leanings, he could... or she... could influence the line of discussion, is that what you are suggesting?

Mr. Youngman: Well, there was no Republican Club.

Unidentified Justice: I am giving you a hypothetical.

Mr. Youngman: If--

Unidentified Justice: They could have one, could they not, a Republican or a Democratic Club?

Mr. Youngman: --They could have had one, but that was not the nature of the forum as it existed at Williamsport High School.

Unidentified Justice: But, we are concerned here with the scope of the authority as well as what really took place.

So, clear that up for me, if you will.

Could a group of students get together and say we want to meet with this other group who are Democrats and we will call ourselves Republicans and have a debate.

They could do that under this arrangement?

Mr. Youngman: I am not sure.

I just don't know what would have happened in that case.

Unidentified Justice: Well, can you suggest anything in the program that prohibits that?

Mr. Youngman: There is nothing except that the clubs that were in this forum were uncontroversial and I believe that the School Board would not have opened this forum generally to First Amendment speech on the ground that they would not have wanted to promote controversy and divisiveness.

The purpose of the forum was to examine... First of all, to expand on directly curricular activities.

Unidentified Justice: Do you suggest the school performs its function of getting young people ready for citizenship if it would forbid a group to get together, one asserting a democratic position and one asserting a republican position and perhaps someone asserting a socialist position?

Do you think they could prohibit that?

Mr. Youngman: If there were a non-public forum, I believe, yes.

That is my position.

And, I think they could prohibit that absent a public forum.

If there was a public forum, then, no.

The answer to that is no.

I would also like to call the attention of the Court to the Joint Appendix at page 104, the second paragraph, which is an affidavit of Wayne E. Newton, the Principal of the school, the last paragraph prior to III.

"Any student activity or club which is considered to contribute to the intellectual, physical or social development of the students and is otherwise considered legal and constitutionally proper would likely be approved as an officially sponsored and sanctioned school activity. "

That was also the nature of the clubs.

They were approved, they were sponsored, and that is the nature of the public school.

There is structure, there is direction, and people understand that what goes on there is approved and sponsored by the district.

That is the nature.

Unidentified Justice: Let me come back to this other question because I am perplexed by your responses.

Suppose a group of students said we want to have one of these seminars, one of these gatherings, in the school in this period to discuss the whole problem of the budget deficit.

We kids... the children would say to the faculty... We kids are going to have to pay that and we would like to have a debate about it.

Would that be permitted?

Mr. Youngman: My reaction is that that would be permitted.

Unidentified Justice: How could you discuss that--

Mr. Youngman: But, it would be... The point is it would have an advisor there and would be subject to structure and direction from the School District.

We, as a School Board, were not going to give up our right to give structure and direction to the education that was going on in the public school.

If that had happened, believe me, the parents would have been in on us the next day complaining loudly and bitterly about having a situation where there was no direction being applied at the school.

Unidentified Justice: --What if the student group wasn't going to have a debate about the budget but it was students against taxation and they wanted to have their meeting like all the other groups around and that is how they can oppose taxation?

Now, suppose the school approved, sent an advisor there, take the roll, do you think that the public would think that the views expressed at that meeting were the school's views?

Mr. Youngman: I don't think so.

I don't think so.

Unidentified Justice: What makes you think that the ordinary member of the public would think that the views expressed at this... what is the name of the group, Petros?

Mr. Youngman: Petros.

Unidentified Justice: Why would the public think that the views expressed there were the school's?

Mr. Youngman: The problem isn't the public, Justice White.

Unidentified Justice: What is it?

Mr. Youngman: It is the students themselves.

Unidentified Justice: Well, all right, the students.

Do you think the students in my other example... Do you think the other students would think the school was espousing the views expressed at that meeting against taxation of any kind?

Mr. Youngman: If this was the Anti-Taxation Club and it had an advisor--

Unidentified Justice: Yes.

Mr. Youngman: --that activity would be viewed by the students at the high school as being approved by the--

Unidentified Justice: You say that too.

That the students would think the school was fundamentally endorsing a cancellation of--

Mr. Youngman: --Yes.

Unidentified Justice: --taxation and even though the school's life depends on it.

[Laughter]

That is kind of silly, isn't it?

Mr. Youngman: Well, it is silly until you consider the nature of public high schools.

We educate kids that run the gambit from educable mentally retarded to gifted and the perceptions of those kinds of children, especially at the lower end of the intellectual scale, are very much more subject to impressionability than... It seems ridiculous to think that that would happen, but with that kind of child--

Unidentified Justice: Do you think the standards should be set to gauge to the lowest common denominator, the retarded?

That is what you seem to suggest.

Mr. Youngman: --No, Mr. Chief Justice, but some accommodation has to be given to that situation, just as I don't think you should gear the standard to the highest level, because you span the gambit.

That is a distinction from the university situation where people are there, first of all, who aren't compelled to be there, and, secondly, who have some intellectual ability to begin with and are admitted on that basis.

Unidentified Justice: Well, what if in the next room beside... along side the group of Against All Taxation is a group that is... It is called the Committee for Fair Taxation and they... supporting taxation.

Now, which group is another student going to think the school is endorsing?

Mr. Youngman: There--

Unidentified Justice: You mean some might think one and some might think the other.

Mr. Youngman: --You have opposites in the forum and there it is more difficult, I grant.

But, some students would think that the school was endorsing one and some the other, unless they also understood that both groups were there and understood the purpose of both groups.

Unidentified Justice: Well, in judging the effect of a particular course of conduct for Establishment Clause purposes, wouldn't we apply an objective test that would ask what a reasonable student would think?

Mr. Youngman: Well, you would apply an objective test, that is true.

That is one of the tests you would apply, but you would also apply the subjective test, which is what would the students, as they exist at the high school, reasonably perceive from the activity that was going on and there--

Unidentified Justice: A reasonable person's standard, not one that is geared either to the high or the low end of the spectrum or to individual problems.

Mr. Youngman: --But, I don't think you can entirely discount the fact that you do have the low end of the spectrum in this particular situation.

And, that is the nature of public education.

It educates everyone.

Unidentified Justice: Mr. Youngman, in defending this case, was any effort made to bring out evidence that would support the suggestion you are making that some of the high school students would perceive endorsement?

There is nothing in the record to support that, is there?

Mr. Youngman: No.

Unidentified Justice: The Court of Appeals certainly made a lot of it.

Mr. Youngman: That is right.

And, I think that that is something that I think this Court has to determine whether it should take judicial notice of.

Unidentified Justice: Even though nobody in the trial of the case thought it important enough--

Mr. Youngman: Even though the record doesn't have expert testimony in this regard.

I will say this, that the record in the Equal Access Act is in some ways equally deficient.

That is I am not sure that this is the kind of thing that can be quantified that way.

It is a matter of if you brought up students or brought up kids between the ages of 14 and 18, you know they are impressionable.

Unidentified Justice: --But, Mr. Youngman, isn't it true that this program was permitted to operate for about a year after the District Court decision and there is nothing in the record to suggest anybody was even remotely unhappy about it in any way, got any misperceptions or anything.

Nobody thought to supplement the record after the program had been going for a year either.

Mr. Youngman: That is true.

And, I would suggest that one of the reasons for that is that this matter was in litigation and that you did not have another religious club or a group of religious clubs as I feel you would have to have which will inevitably result if this... if the decision of the Circuit Court is reversed.

That is my reasoning, Justice Stevens, for that--

Unidentified Justice: Does the record tell us anything about the attendance during that year, how popular the group was?

Mr. Youngman: --The record says that the club did not exceed 45 members.

Unidentified Justice: That was at the very first meeting.

Mr. Youngman: That is right.

Unidentified Justice: There were about 20 at the second meeting and they met for a year.

Do we know how many people during the year--

Mr. Youngman: No, the record doesn't show how many met.

Unidentified Justice: --We don't know if it is two or three or twenty or thirty.

Mr. Youngman: You don't know that from the record.

I suspect it was between twenty and forty-five, a relatively small number.

But, the fact of the matter is this matter was in litigation and I think that there was an inhibiting effect of that and that is why you haven't had the others come in and ask for access which I fully expect to happen if this case is reversed.

Unidentified Justice: May I ask this question?

Do you agree with the Court of Appeals that the only difference between this case and Widmar is the age of the students?

Mr. Youngman: No.

I think Widmar is distinguished also by the very nature of public schools as opposed to the university.

Unidentified Justice: Without regard to the age of the children?

Mr. Youngman: Without regard to the age, that is right.

We span the gambit, as I have said.

Unidentified Justice: In what respect?

Mr. Youngman: In intellect from educably mentally retarded to gifted.

Unidentified Justice: That has to do with age though, maturity.

Mr. Youngman: Well, it has to do with age, but it also has to do with maturity regardless of age too, and that is the point.

Unidentified Justice: The test turns in this case solely on the question of the age of the pupils?

Mr. Youngman: No, it also turns--

Unidentified Justice: The Court of Appeals said that explicitly.

Mr. Youngman: --Yes, but I don't believe that that should be the test.

I think it should turn on the nature of the public school as opposed to the university.

Unidentified Justice: Who finances the University of Missouri, taxpayers, the same as the grade school and high school?

Mr. Youngman: As I understand it, the taxpayers did finance the university.

Unidentified Justice: It is a public school?

Mr. Youngman: That is correct, that is correct, but the university situation is different from the secondary and elementary education provided in the compulsory attendance setting and there is just no way to avoid that.

Unidentified Justice: Mr. Youngman, suppose we reverse the Court of Appeals and the School Board says, well, even if this is not an establishment, we nevertheless don't want the group to meet and we are perfectly free to do that just as our own decision.

Would the District Court's decision stand as a bar to--

Mr. Youngman: District and Circuit Court's decision with respect to the open forum question would mean that any First Amendment club has a right to be in that forum.

Unidentified Justice: --So, the free-speech interest would get them into the school regardless of the wishes of the school?

Mr. Youngman: That is correct.

Unidentified Justice: At least that is what the two courts below said.

Mr. Youngman: That is right.

You would leave no discretion to the School Board in the running of the educational process in that particular forum.

Chief Justice Burger: Your time has expired now, Mr. Youngman.

Mr. Youngman: Thank you.

Chief Justice Burger: Do you have anything further, Mr. Smart?

Mr. Smart: A few comments, Your Honor.

Mr. Chief Justice:

First of all, I would like to disagree with Mr. Youngman about the discretion of the school administrators.

I view the decision of the District Court in this case resting on the fact that the Establishment Clause was the only reason asserted for denying this group an opportunity to meet and I think it would be a different case--

ORAL ARGUMENT OF JAMES MADISON SMART, JR., ESQ. ON BEHALF OF THE PETITIONERS-- REBUTTAL

Unidentified Justice: Would you say that under the... Would you say that if we reverse the Court of Appeals the School Board could nevertheless keep your group out?

Mr. Smart: --I think it would be an entirely different case.

Unidentified Justice: Well, that isn't what I asked you.

Mr. Smart: Yes.

I think they could keep it out if they had--

Unidentified Justice: Do you mean despite their free-speech interest?

Mr. Smart: --No.

Only if they had a structured activity period, only if they had a--

Unidentified Justice: Well, yes, there is a structured activity period, isn't there?

Mr. Smart: --Yes.

And, if it is predetermined what the categories are in their curricular, then they could keep them out.

Unidentified Justice: Well, if there is a forum in the school, you would think your group should be able to get in.

You would think the First Amendment would require them to get in.

Mr. Smart: Yes, Your Honor, we would argue that.

Unidentified Justice: Well, what if the school policy were that we will have an activities period and it is open only to secular groups to meet.

Can the school do that, not considering the Act passed by Congress that might superimpose some different standard today.

As a matter of constitutional doctrine, could the school do this?

Mr. Smart: Your Honor, I do not believe that they could articulate a valid reason for having only secular activities once they have opened the forum.

I also think it would create Establishment Clause problems with regard to excessive entanglement of determining what is religious and what is not religious as the Court discussed in the Widmar case.

Unidentified Justice: I gather they would simply have to abandon the whole program to keep your group out.

Mr. Smart: Your Honor, I think they would not have to abandon the whole program.

I think they have a choice of curricular-related groups that are an extension of the curriculum, or letting the students decide and if they let the students decide, then they can't keep the religious group out.

And, all we are saying here is we believe they have opened the forum and we are just asking to be included in that.

Unidentified Justice: Mr. Smart, do you take the position your clients have the right to use the bulletin boards as the other activity groups do?

Mr. Smart: No, Your Honor, that is not in this case.

Our clients have never sought that right.

Unidentified Justice: I know they haven't sought it, but assume they did seek it.

Would they not have the same right as others and, if not, why not?

Mr. Smart: If our students had sought that right, then I think this Court would want to know more about the details of how that is administered, who puts the notices up there, who determines what is up there, and that sort of thing.

We would argue that if it is the students putting the notices up there, then the concept of neutrality, if everyone realizes this is the students' bulletin board and they can put whatever they want to up there, then the concept of neutrality requires that they have equal access to that bulletin board.

If there were more government involvement in the board, then it might be a different question.

Unidentified Justice: Well, Mr. Smart, under your view, would the Board have to permit some group such as Sons of Satan or whatever it might be that would be entirely anti-religious to come and meet?

Mr. Smart: Yes, Your Honor, the School Board would have to permit that.

Unidentified Justice: Or a neo-Nazi party?

Mr. Smart: Or a neo-Nazi party unless the School Board can articulate a compelling interest.

And, the School Board would probably have two options in that regard.

Number one, a hate group or something of that nature might present a compelling state interest to keep them out or a school district could always go to a parental consent format if it was causing a lot of political turmoil for the school board to have such a group.

I think that would be an easier way.

It would keep the government from prescribing what is orthodox.

I think the issue is--

Unidentified Justice: Did both parties here agree that in this instance an open forum had been created?

Mr. Smart: --Did both parties agree?

Unidentified Justice: Both sides.

Mr. Smart: Both sides in the District Court I think, in effect, agreed that at least that was not contested.

Unidentified Justice: So, perhaps it isn't necessary in this case to wrestle with all those problems.

Mr. Smart: That is exactly right.

Unidentified Justice: The only barrier is the Establishment Clause now?

Mr. Smart: The only thing we are asking this Court is to decide that our group does not face any additional barrier because of the Establishment Clause.

Unidentified Justice: But, wasn't an issue in the Court of Appeals whether any kind of an open forum had been created at all, because the Court of Appeals certainly spent a lot of time discussing it and saying, yes, there is one.

Mr. Smart: That was certainly argued by Mr. Youngman in the Court of Appeals that there was no public forum created.

Unidentified Justice: Exactly.

I suppose, in support of the judgment below, he could argue it here.

Mr. Smart: Yes, Your Honor, he could argue that.

The fact is that the only reason that the School District said that we can't meet is because of the Establishment Clause.

They did not say, well, we think that this in inappropriate--

Unidentified Justice: Mr. Smart, does the record contain the legal opinion on which the School Board relied?

Mr. Smart: --Excuse me, Your Honor.

Unidentified Justice: Does the record contain the legal opinion on which the School Board relied?

Mr. Smart: It does not contain the letter from the attorney, however, we do have a recitation in the record from the Superintendent of what the attorney said.

Unidentified Justice: I understand.

But, the opinion itself was not put in record?

Mr. Smart: The opinion itself is not in the record, but it is clear from the record that the opinion of the attorney concerning the Establishment Clause was the only reason and I think that it would be a different case if the school had said it is inappropriate for this reason or that reason or some other reason.

I think as lawyers--

Chief Justice Burger: Your time has expired.

Mr. Smart: --Thank you, Your Honor.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.