15th Annual Leroy R. Hassell, Sr. National Constitutional Law Moot Court Competition

Transcription

1 15th Annual Leroy R. Hassell, Sr. National Constitutional Law Moot Court Competition Competition Problem 1

2 No IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 2015 PAUL JONES, PETER SMITH, AND THE COAST CITY SATANIC TEMPLE, Petitioners, v. ROBERT GORDON, SUPERINTENDENT OF THE COAST CITY DEPARTMENT OF SCHOOLS, THE COAST CITY DEPARTMENT OF SCHOOLS, DENNIS ALBRIGHT, CHAIRMAN OF THE COAST CITY SCHOOL BOARD, AND THE COAST CITY SCHOOL BOARD, Respondents. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRTEENTH CIRCUIT 2

3 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WEST CALIFORNIA PAUL JONES, PETER SMITH, AND THE COAST CITY SATANIC TEMPLE, Plaintiffs, v. Civ. Action No. 14-cv-774 ROBERT GORDON, Superintendent of the Coast City Department of Schools, THE COAST CITY DEPARTMENT OF SCHOOLS, DENNIS ALBRIGHT, Chairman of the Coast City School Board, AND THE COAST CITY SCHOOL BOARD, Defendants. Memorandum Opinion and Order Sears, A., District Judge: This case involves a religious group desiring to use Ronald Reagan High School (P.S. # 205) in Coast City to hold its weekly services despite a school board rule that prohibits using schools for religious worship services. Plaintiffs contend the rule violates the First Amendment Free Speech Clause because it forbids speech based on viewpoint. Additionally, Plaintiffs contend the rule violates the First Amendment Free Exercise Clause because it singles out religions for specifically disfavored treatment. After discovery, both parties moved for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. For the reasons set out below, I deny the Defendants motion for summary judgment and grant the Plaintiffs motion. 3

4 Facts The facts are not in dispute. Coast City, West California is a city of about two and a half million people, with five hundred public schools. In 1975, pursuant to West California state law, the Coast City School Board created Education Rule No governing the use of schools for non-school events. Under this rule, an organization may use a school building during non-school hours. Uses permitted under the rule include educational, instructional, recreational, social, civic, and other uses pertaining to the welfare of the community. If the requesting user is a student organization, the school building may be used rent-free. For other uses, the requesting organization pays the cost of keeping the building open for that time (e.g. janitorial costs). Approximately five hundred organizations have applied and been granted use permits to use school buildings, resulting in approximately fifteen thousand individual uses over the last three years. School buildings have been used for Girl Scout, Boy Scout, PTA, Alcoholics Anonymous, and Freemason meetings; YMCA tutoring sessions; Coast City Community Center adult education classes; youth and adult sports groups; political candidate forums; and many other uses. 1 However under Education Rule No , organizations are not permitted to use school buildings for religious worship services. Coast City, W. Cal., Ed. R. No (I)(P). 1 Approximately 25 applications per year are denied. Most denied requests are for political or personal events, which are prohibited under the rule. When an application is denied, the section of the rule prohibiting the particular use is always cited. The Department of Schools Superintendent admitted at his deposition that when people inquire about the application process they are informed about the restrictions on uses. While staff is instructed to not confirm a proposed use falls within the rule, staff will sometimes inform potential applicants their desired use is not permitted before they submit an application. Although the Department does not track how many potential applicants choose to not apply after inquiry, the Superintendent acknowledges many choose to not apply after being told of the restrictions or informed that the proposed use is not permitted. 4

5 Until 1995, about twenty different churches used schools for worship services. When a local chapter of the Freedom From Religion Foundation complained that allowing churches to use schools subsidized religion and violated the Establishment Clause, the School Board added section (I)(P) to Education Rule No During the debate hearing on the proposal, Walter Stern, one member on the five-member school board, stated: We must adopt this rule. Religion is a disease in our society, and we should not provide it a place to fester in public. If individuals wish to remain religious, let them do so in their own homes. Although the rule was adopted unanimously, three members expressed outrage at Stern s comments, stating they only voted for the rule to avoid an Establishment Clause violation. Plaintiffs, Paul Jones and Peter Smith, are the leaders of the Coast City Satanic Temple, a local religious organization that worships Lucifer. The Temple was founded in 1966, and has no building of its own. For many years the Temple met in homes. However, about two years ago, the Temple outgrew its venues, and Plaintiffs sought a larger meeting location. Plaintiffs applied to use Ronald Reagan High School (P.S. # 205) to hold their weekly worship services. They were denied permission to use the school for their worship services, based solely on Education Rule No (I)(P). Both before and after the denial they sought to find other locations to regularly conduct their services. They have yet to find a location that they can afford that will allow them to worship. Without access to the school, they will be unable to practice the worship services their religion requires. During a typical worship service of the Coast City Satanic Temple, congregants pray and sing praise to Lucifer, perform ritualistic chants while wearing vials of urine from prostitutes around their necks, read Satanic texts, listen to lectures, and discuss how their beliefs affect their behavior in the community. According to Paul Jones uncontroverted deposition testimony, the 5

6 prayers, songs, textual readings, discussions, and lectures generally revolve around the Temple s belief system. Their central creed is a hedonistic belief that every individual is his or her own greatest good. During the lectures Temple attendees are encouraged to look after themselves first, and charity is condemned. Individuals who cannot make it on their own should be left to die. Individuals should act to maximize their own happiness and only consider others if it will do so. Free Speech Claim Plaintiffs contend that forbidding organizations from conducting religious worship services in school buildings is a viewpoint-based restriction on speech, forbidden by the First Amendment. I agree. The First Amendment to the United States Constitution provides that, Congress shall make no law... abridging the freedom of speech. The Free Speech Clause of the First Amendment has been incorporated through the Fourteenth Amendment to apply to states and local governments. Gitlow v. New York, 268 U.S. 652, 666 (1925). Although the First Amendment bars most governmental restrictions on speech, it does not require that the government open its property to private speakers in all instances. Some areas, such as public parks and sidewalks are public forums that must be kept open. Perry Educ. Ass n v. Perry Local Educators Ass n, 460 U.S. 37, 45 (1983). A state or municipality may only impose restrictions on use of a traditional public forum that are reasonable, content-neutral regulations controlling the time, place, and manner of speech. Id. However, content-based and viewpoint-based regulations must be justified by a compelling state interest. Id. Schools do not fall within those areas that are traditional public fora. However, a government entity may create a designated public forum if government property that has not 6

7 traditionally been regarded as a public forum is intentionally opened up for that purpose and the rules for traditional public fora otherwise apply. Pleasant Grove City, Utah v. Summum, 555 U.S. 460, (2009). If a government opens a forum for use by the public (or a subset thereof) for use on limited topics, it may impose reasonable, content-based restrictions designed to promote the purpose of the limited forum. Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106 (2001). But, as in a public forum, regulations that target speech because of its viewpoint, instead of merely limiting the topics discussed, are forbidden by the Free Speech Clause. Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995). Defendants contend they have merely created a limited public forum, and that the exclusion of religious worship services is a reasonable content-based, viewpoint-neutral limitation to avoid government sponsorship of religion. I disagree. While allowing speech on government property that is not traditionally a public forum does not automatically open up the forum to all speech, the School Board s intention to open up schools for public discourse consequently transformed the schools into designated public forums. Hopper v. City of Pasco, 241 F.3d 1067, 1074 (9th Cir. 2001) ( A designated public forum exists where the government intentionally opens up a nontraditional forum for public discourse. (internal quotations omitted)). 2 In a designated public forum, content-based restrictions are subject to strict scrutiny. Id. at Thus, the School Board s assertion that the rule is content-based requires the rule to survive strict scrutiny. 2 See also Coast City Ed. R. No (I)(H) ( All such uses shall be non-exclusive and open to the general public. ), id. (I)(I) ( Such meetings must be non-exclusive and open to the general public. ). 7

8 Moreover, even assuming that the Defendants did create a limited public forum, Education Rule No (I)(P) violates the First Amendment because it discriminates among speakers on the basis of viewpoint. Although the line between content-based regulation and viewpoint-based regulation is murky at times, Rosenberger, 515 U.S. at , when a regulation targets speech because of the perspective of the speaker and not merely the topic addressed, it is impermissible viewpoint regulation, Lamb s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 394 (1993) ( [T]he government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject. ). Defendants contend that a religious worship service is sui generis, that is, a thing itself because religious services have no secular analog. Although some topics may be discussed from both secular and religious perspectives, this topic is not among them. This reasoning, however, treats worship services as a whole without considering the nature of the individual activities that happen during a service. See Good News Club, 533 U.S. at 111 (analyzing the activities conducted instead of the label given to the activities and holding that something that is quintessentially religious or decidedly religious in nature [may] also be characterized properly as the teaching of morals and character development from a particular viewpoint. ); Widmar v. Vincent, 454 U.S. 263, 269 n.6 (1981) ( First, the dissent fails to establish that the distinction has intelligible content. There is no indication when singing hymns, reading scripture, and teaching biblical principles, cease to be singing, teaching, and reading all apparently forms of speech, despite their religious subject matter and become unprotected worship. ). When I look behind the label the School Board uses to paint the Temple s activities, to the activities themselves, I find each is permitted by Education Rule No The 8

9 most obvious example is discussions of morality and its effect on the way individuals interact with the community. This is clearly a part of the Temple s services, and but for the prohibition on religious worship services, would be permitted under Education Rule No (permitting other uses pertaining to the welfare of the community ). Even though Plaintiffs views on these topics are extremely counter-majoritarian, their views that individuals should not act to benefit society as a whole are protected by the First Amendment to the same extent as Boy Scout discussions of how Scouts should care for their community, or a PTA discussion on the educational needs of a community. Forbidding religious worship services favors those who wish to benefit the community at the expense of those who do not care for it. Even though their own creeds would not make room for a dissenting minority such as themselves, the principles of the First Amendment require that we do so. Restricting these activities from a religious perspective is viewpoint discrimination because it favors only one side of the discussion. Defendants contend that to avoid an Establishment Clause violation the restriction is reasonable in light of the purposes of the forum. However, this rule is viewpoint discriminatory, thus the appropriate inquiry is not whether the regulation is reasonable, Good News Club, 533 U.S. at 107 ( Because the restriction is viewpoint discriminatory, we need not decide whether it is unreasonable in light of the purposes served by the forum. ), but whether the restriction is necessary and the least restrictive means to achieve a compelling governmental interest, Church on the Rock v. City of Albuquerque, 84 F.3d 1273, (10th Cir. 1996) ( We understand Rosenberger to mean that courts must examine viewpoint-based restrictions with an especially critical review of the government's asserted justifications for those restrictions. At a minimum, to survive strict scrutiny the... policy must be narrowly drawn to effectuate a compelling state interest. ). Although complying with the Establishment Clause may be characterized as [a] 9

10 compelling interest, id. at 112, allowing the Temple to conduct a worship service in the school does not create an Establishment Clause violation. The key to the Establishment Clause in this context is neutrality. The Supreme Court has repeatedly held that when a government opens a forum on a neutral basis to a broad range of groups, both secular and religious, the Establishment Clause is satisfied. Id. at 114; Rosenberger, 515 U.S. at 839; Widmar, 454 U.S. at 274. Allowing the Temple to use the school building, just like any other organization, does not result in favoritism, real or perceived, towards a particular religion, or even religions in general. Thus, the School Board may not rely on the Establishment Clause to justify its exclusion of the Temple. Education Rule No is a viewpoint-based restriction on speech. Allowing the Temple to use a school would not violate the Establishment Clause, and Defendants offer no other compelling interest to justify the regulation. It fails strict scrutiny. As much as the viewpoints espoused by the Satanic Temple are loathed by many, and in some ways precisely because they are so, they are protected by the Free Speech Clause of the First Amendment. Free Exercise Claim Having found that the Free Speech claim alone would justify requiring the Defendants to permit the Temple to use the facility, I could end the inquiry. However, circuit splits are developing on both claims and Defendants have suggested they intend to appeal any adverse ruling in this matter. Thus, I will proceed to the Free Exercise Clause analysis to allow this case to be fully resolved without being litigated here again. In addition to their Free Speech claim, Plaintiffs contend that the rule violates the Free Exercise Clause of the First Amendment because it is not a neutral law of general applicability under the Supreme Court s precedent in Employment Division, Department of Human Resources 10

11 of Oregon v. Smith, 494 U.S. 872 (1990) and Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993). 3 I agree. The First Amendment provides that Congress shall make no law... prohibiting the free exercise [of religion]. This prohibition applies equally to state and local governments. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). The right to exercise one s religion means first and foremost, the right to believe and profess whatever religious doctrine one desires. Emp t Div., Dep t of Human Res. v. Smith, 494 U.S. 872, 877 (1990). Beyond belief, the Free Exercise clause only prohibits governments from specifically targeting religion for special reprobation. Id. at The Constitution does not require the government to make special provision for religion when it adopts otherwise neutral and generally applicable laws. Id. at However, if a law is not neutral or generally applicable, it is subject to strict scrutiny. Lukumi, 508 U.S. at 533, 546. Education Rule No cannot be neutral because it specifically singles out religious conduct for different and negative treatment. 4 The place to start in analyzing neutrality is the face of the text. Lukumi, 508 U.S. at 533 ( To determine the object of a law, we must begin with its text, for the minimum requirement of neutrality is that a law not discriminate on its face. ). Coast City schools are made broadly available for many uses, but religious uses are specifically excluded on the face of the text. This the city may not do. 3 Plaintiffs make a brief argument that the assertion of a Free Speech and Free Exercise claim together justifies the application of strict scrutiny under the hybrid rights theory of Smith. Employment Div., Dep t of Human Res. v. Smith, 494 U.S. 872 (1990). Although sufficient not to waive the claim, because the plaintiffs treatment is brief, and there is a three-way split among the circuits in applying the doctrine, I think it not worth addressing the claim, where I find the law is not neutral. 4 Plaintiffs also contend that a law is not neutral because it was adopted out of animosity toward religion because of board member Stern s anti-religious comments during the debate on the regulation s adoption. However, because I find that the law is not neutral on its face, I need not resolve whether an individual legislator s animus toward all religious is sufficient, when that animus is disclaimed by a majority of the governing body. 11

12 Thus, the rule is not neutral and is subject to strict scrutiny. Lukumi, 508 U.S. at 533, 546. As they did for the Free Speech Claim, Defendants argue their Establishment Clause concerns justify the restriction. However, their Establishment Clause argument fails in this context for the same reasons, explained above, that it fails in the Free Speech context. Defendants cannot offer any compelling justification for the regulation. Therefore, the rule fails strict scrutiny and violates the Free Exercise Clause. Conclusion Education Rule No (I)(P) violates both the Free Speech and the Free Exercise Clauses of the First Amendment and cannot constitutionally be applied to bar the Coast City Satanic Temple from using the Coast City schools. The Plaintiffs motion for summary judgment is granted, and the School Board is permanently enjoined from enforcing its restriction against renting the schools for religious worship services. 12

13 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WEST CALIFORNIA PAUL JONES, PETER SMITH, AND THE COAST CITY SATANIC TEMPLE, Plaintiffs, v. Civ. Action No. 14-cv-774 ROBERT GORDON, Superintendent of the Coast City Department of Schools, THE COAST CITY DEPARTMENT OF SCHOOLS, DENNIS ALBRIGHT, Chairman of the Coast City School Board, AND THE COAST CITY SCHOOL BOARD, Defendants. Judgment in a Civil Action The Court grants Plaintiffs Motion for Summary Judgment, Denies Defendants Motion for Summary Judgment, and permanently enjoins enforcement of Coast City Education Rule No (I)(P). Date: August 4, 2014 CLERK OF COURT /s/ Clarence X. George Deputy Clerk 13

14 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WEST CALIFORNIA PAUL JONES, PETER SMITH, AND THE COAST CITY SATANIC TEMPLE, Plaintiffs, v. Civ. Action No. 14-cv-774 ROBERT GORDON, Superintendent of the Coast City Department of Schools, THE COAST CITY DEPARTMENT OF SCHOOLS, DENNIS ALBRIGHT, Chairman of the Coast City School Board, AND THE COAST CITY SCHOOL BOARD, Defendants. Notice of Appeal PLEASE TAKE NOTICE that Defendants hereby appeal to the United States Court of Appeals for the Thirteenth Circuit from the judgment entered in this action on August 4, Dated: August 7, 2014 /s/ Annabella D. Hadaway Coast City Attorney s Office, Civil Division 9075 Mason St., NE Coast City, West California, Attorneys for Defendants 14

15 UNITED STATES COURT OF APPEALS FOR THE THIRTEENTH CIRCUIT ROBERT GORDON, Superintendent of the Coast City Department of Schools, THE COAST CITY DEPARTMENT OF SCHOOLS, DENNIS ALBRIGHT, Chairman of the Coast City School Board, AND THE COAST CITY SCHOOL BOARD, Defendants-Appellants, Civ. Action No. 15-cv-6062 v. PAUL JONES, PETER SMITH, AND THE COAST CITY SATANIC TEMPLE, Plaintiffs-Appellees. Opinion Dawkins, R., Circuit Judge. Appellees, Plaintiffs below, challenge Coast City Education Rule No (I)(P) as a violation of the Free Speech and Free Exercise Clauses of the First Amendment. In the district court, both parties moved for summary judgment, and the district court granted summary judgment for Appellees. Although the court correctly concluded the facts were sufficiently undisputed to support summary judgment, it incorrectly concluded Coast City s rule violates the First Amendment. For the reasons below, we conclude the rule is perfectly permissible under the First Amendment, and accordingly reverse. 15

16 Free Speech Claim The district court concluded Education Rule No (I)(P) is a viewpoint-based restriction on speech, impermissible under the First Amendment. We disagree. The district court held the School Board created a designated public forum. This was in error. Although many uses are permitted in school buildings, the School Board has chosen to limit the subjects that are permitted and has thus maintained only a limited public forum. See Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106 (2001) ( When the State establishes a limited public forum, the State is not required to and does not allow persons to engage in every type of speech. The State may be justified in reserving [its forum] for certain groups or for the discussion of certain topics. (quoting Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995))). Even so, the government may not restrict speech because of the viewpoint it espouses when it otherwise discusses a topic permitted within the forum. Rosenberger, 515 U.S. at 830. In reaching its conclusion that the rule is a viewpoint-based regulation of speech, the district court failed to recognize that a religious worship service is a thing unto itself, without a secular analog. Faith Ctr. Church Evangelistic Ministries v. Glover, 462 F.3d 1194, 1211 (9th Cir. 2006) ( Religious worship, on the other hand, is not a viewpoint but a category of discussion within which many different religious perspectives abound. ) opinion amended and superseded on denial of reh g, 480 F.3d 891 (9th Cir. 2007) abrogated on other grounds by Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, (2008). Analyzing only the component parts of a religious worship service ignores the reality that motivated the School Board to adopt the rule at issue in this case. The School Board was reasonably concerned that allowing religious worship in school buildings would violate the Establishment Clause and require it to defend 16

17 multiple lawsuits regarding church meetings in schools. Religious worship services are not merely the sum of the activities conducted when considered in light of the effect on the Establishment Clause. See Cnty. of Allegheny v. Am. Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 597 (1989) (holding that an Establishment Clause analysis depended on whether the challenged governmental action is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the nonadherents as a disapproval, of their individual religious choices. ) abrogated on other grounds by Town of Greece, N.Y. v. Galloway, 134 S. Ct (2014). Allowing a full-fledged worship service in a school building is more likely to be understood as an endorsement of religion by the government than, for example, permitting the discussion of a topic from a religious point of view or the occasional prayer during a Boy Scout ceremony or AA meeting. Id. at 601 ( Thus, by prohibiting government endorsement of religion, the Establishment Clause prohibits precisely what occurred here: the government s lending its support to the communication of a religious organization's religious message. ). Moreover, the district court s reliance on Good News Club v. Milford Central School, 533 U.S. 98 (2001), is misplaced. Although the Court held that the prohibition in that case was viewpoint discrimination, it also noted that the activity was not mere religious worship. Id. at 112 n.4. Although the district court attempted to list the activities that make up a religious service in order to find viewpoint discrimination, the fact remains that the activities conducted by the temple are mere religious worship, which the Court in Good News implied could be excluded as a content neutral regulation in a limited public forum. Id. Because we hold that Education Rule No (I)(P) is a viewpoint neutral regulation, it need only be reasonable for furthering the purposes of the forum. Christian Legal Soc y v. 17

18 Martinez, 561 U.S. 661, 685 (2010). If avoiding an actual violation of the Establishment Clause is a compelling state interest, Widmar v. Vincent, 454 U.S. 263, 271 (1981), preserving a forum for education and community without the specter of a likely Establishment Clause violation is a reasonable measure. Although we need not decide whether the regulation is necessary to avoid an Establishment Clause violation, we conclude the School Board has a basis for believing that an Establishment Clause violation might exist, and that is sufficient to justify the rule. Having a church of any kind meeting in a school raises the possibility that the public will come to associate the church with the school building, and see the association between the two as the government s endorsement of that particular church. The School Board has the right to avoid this public perception, and forbidding religious worship services in the schools is a reasonable way to do so. Appellees contend that only avoiding an actual Establishment Clause violation would be sufficient to justify the restriction, but to require the School Board to demonstrate an actual Establishment Clause violation would place too high a burden on the School Board. It would place the School Board between a rock and a hard place. The School Board would be forced to predict exactly where the Supreme Court will draw the line between the Free Speech Clause and the Establishment Clause when dealing with religious speech in a limited public forum. If the School Board guesses wrong in one direction, it violates the Free Speech Clause by prohibiting protected speech; if it guesses wrong in the other, it violates the Establishment Clause. This is especially true given the uncertainty surrounding Establishment Clause jurisprudence. Rosenberger, 515 U.S. at 86 ( [O]ur Establishment Clause jurisprudence is in hopeless disarray.... ). 18

19 The First Amendment is not offended when the government chooses to exclude religious worship services from the limited public forum it creates. Free Exercise Claim The district court also concluded that the rule violated the Free Exercise Clause because it targets religion. Relying on Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990) and Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), the district court concluded that the law is not neutral because it facially targets religion. The district court also concluded that the government failed to satisfy strict scrutiny. We reverse. The district court both ignored a key Supreme Court case addressing this issue and misunderstood the nature of the issue at hand. This issue is about the School Board s desire to avoid violating the Establishment Clause and not a hostility towards religion. Although it is true that the government may not single out religion for special disapprobation, Lukumi, 508 U.S. at 533, the rule does not do so. It merely represents the decision of the School Board not to favor and subsidize the practice of religion in public schools. The key case that the district court ignored is Locke v. Davey, 540 U.S. 712, (2004), in which the Supreme Court rejected applying Lukumi in the way the district court did below. Id. In Locke, the Supreme Court recognized the distinction between restricting an individual s religious practice and choosing not to subsidize it: In the present case, the State s disfavor of religion (if it can be called that) is of a far milder kind. It imposes neither criminal nor civil sanctions on any type of religious service or rite. It does not deny to ministers the right to participate in the political affairs of the community. And it does not require students to choose between their religious beliefs and receiving a government benefit. The State has merely chosen not to fund a distinct category of instruction. 19

20 Id. Just as training a minister is something so decidedly religious that it has no secular analog, id. at 721, religious worship services are sui generis, and the state may choose not to fund them, through the provision of subsidized rental space, without running afoul of the Free Exercise Clause. Excluding religious worship services from school buildings for the purposes of respecting the Establishment Clause shows respect for the freedom of religion, not animosity toward religion. Id. Although the government may not selectively impose burdens only on conduct motivated by religious belief, Lukumi, 508 U.S. at 543, the City imposes no burden on the Appellees exercise of religion. If the School Board had never decided to open the public schools for some uses, the Satanic Temple could have no claim that the City must provide access to the space at costs well below market rates merely because the Temple could not find another place it could afford to meet. The Appellees remain free to practice their religion as they see fit, just without City subsidies. Finally, as with the Free Speech Clause, the City s reasonable desire to avoid potential Establishment Clause issues justifies the exclusion of religious worship services from using school facilities. Conclusion In the end, Appellees have failed to establish that the School Board s rule violates either the Free Speech or Free Exercise Clauses. The district court s grant of summary judgment for Appellees is reversed, and the case is remanded to the district court with instructions to enter summary judgment in favor of Appellants. 20

21 UNITED STATES COURT OF APPEALS FOR THE THIRTEENTH CIRCUIT ROBERT GORDON, Superintendent of the Coast City Department of Schools, THE COAST CITY DEPARTMENT OF SCHOOLS, DENNIS ALBRIGHT, Chairman of the Coast City School Board, AND THE COAST CITY SCHOOL BOARD, Defendants-Appellants, Civ. Action No. 15-cv-6062 v. PAUL JONES, PETER SMITH, AND THE COAST CITY SATANIC TEMPLE, Plaintiffs-Appellees. Docket [All previous entries omitted] January 5, 2015 Oral arguments March 15, 2015 Judgment entered: The district court s judgment is REVERSED. 21

22 THE SUPREME COURT OF THE UNITED STATES OCTOBER 2015 TERM PAUL JONES, PETER SMITH, AND THE COAST CITY SATANIC TEMPLE, Petitioners, v. No ROBERT GORDON, Superintendent of the Coast City Department of Schools, THE COAST CITY DEPARTMENT OF SCHOOLS, DENNIS ALBRIGHT, Chairman of the Coast City School Board, AND THE COAST CITY SCHOOL BOARD, Respondents. Petition for a Writ of Certiorari to the United States Court of Appeals for the Thirteenth Circuit Petitioners in the above-captioned matter pray that a writ of certiorari be issued to review the judgment of the United States Court of Appeals for the Thirteenth Circuit, entered March 15, 2015 reversing the judgment of the District Court for the District of West California. Dated: April 1, 2015 /s/ Russell Banks Banks, Wilson, and Howe, PLLC 9477 Whitten Drive Coast City, West California, W.C. Bar #

23 THE SUPREME COURT OF THE UNITED STATES OCTOBER 2015 TERM PAUL JONES, PETER SMITH, AND THE COAST CITY SATANIC TEMPLE, Petitioners, v. No ROBERT GORDON, Superintendent of the Coast City Department of Schools, THE COAST CITY DEPARTMENT OF SCHOOLS, DENNIS ALBRIGHT, Chairman of the Coast City School Board, AND THE COAST CITY SCHOOL BOARD, Respondents. Order The petition for a Writ of Certiorari to the United States Court of Appeals for the Thirteenth Circuit is hereby granted. IT IS ORDERED that the above captioned cause be set down for argument in the October Term of 2015, with argument limited to the following issues: 1. Does excluding religious worship services from permitted uses for the rental of school buildings by organizations violate the Free Speech Clause of the First Amendment to the United States Constitution when other permitted uses include civic, social, recreational, and other uses pertaining to the welfare of the community? 2. Does excluding religious worship services from permitted uses for the rental of school buildings by organizations when other permitted uses include civic, social, recreational and other uses pertaining to the welfare of the community impermissibly target religion and violate the Free Exercise Clause of the First Amendment to the United States Constitution? Dated: June 30,

24 57-08 After Hours Use of Schools Appendix A COAST CITY EDUCATION RULES I. USE OF SCHOOL BUILDINGS A. The after-hours use of School Buildings is subject to this rule and all other applicable federal, state, and local laws. B. The primary use of a school s premises must be for Department of Schools (DoS) programs and activities. After DoS programs and activities, preference will be given to use of school premises for community, youth, and adult group activities. C. Responsible adults must be in attendance at all times when minors are using school premises. D. Events that are personal in nature (e.g., weddings, bridal or baby showers, engagement parties) are strictly forbidden. E. Permits may be granted for the purpose of instruction in any branch of education, learning, or the arts. F. Permits may be granted for civic forums and community centers in accordance with applicable law. G. Permits may be granted for recreation, physical training, and athletics, including competitive athletic contests of children attending nonpublic, not-for-profit schools. H. Permits may be granted for holding social, civic, and recreational meetings and entertainment, and other uses pertaining to the welfare of the community. All such uses shall be non-exclusive and open to the general public. I. Permits may be granted for holding PTA/PA meetings. Such meetings must be non-exclusive and open to the general public. J. Athletic fields, gymnasiums, auditoriums, swimming pools, and other large areas shall not be scheduled in a way that creates an unreasonable restriction of use by others. K. School premises may not be used for commercial purposes. L. Permits may be granted for such other uses as may be authorized by law. M. Gambling is not permitted on school premises. N. The sale, use, consumption, and/or possession of any alcoholic beverage in any school building by youth or adults are strictly prohibited. O. The selling of refreshments on school premises is prohibited unless specifically approved on the permit. P. No permit shall be granted for the purpose of holding religious worship services, or otherwise using a school as a house of worship. Q. No group or organization that invites members of the public to a meeting in a school facility may exclude persons on the basis of actual or perceived race, color, religion, age, creed, ethnicity, national origin, alienage, citizenship status, disability, sexual orientation, gender, or weight. R. Permits may be granted to religious clubs for students that are sponsored by outside organizations and otherwise satisfy the requirements of this rule on the A-1

25 II. same basis that they are granted to other clubs for students that are sponsored by outside organizations. S. Permits may be granted to hold primary, general, and special elections for federal, state, and local offices. T. Any user who obtains a permit to use a public school building may not use the school premises as a mailing or business address. U. The DoS, in light of the inherent risk of injury to participants, reserves the right in its sole discretion to deny permission for any event. V. The DoS Superintendent reserves the right to waive this rule or any portion(s) thereof, that is not otherwise required by law, if he determines it to be in the best interests of the school system. Requests for waivers shall be submitted in writing to the DoS Superintendent s office. REVIEW AND APPROVAL OF PERMIT APPLICATION A. Every user must have an approved permit to use a school s premises. B. The permit is required to be completed by each user wishing to use the school building during extended use time regardless of whether the user is required to pay space or security fees. C. Principals are responsible for making the decision to approve or deny a permit application, based on a determination as to whether the space is available for use and the user has satisfied the requirements of this rule. Principal approval is subject to review by the DoS Superintendent. D. Before a Principal approves a permit for an outside organization to use a school building, a thorough check of the potential user should be made. E. No permit shall be considered approved unless it bears the approval of the user representative, Principal, and DoS Superintendent (or their designees). F. Permits are not transferable. A user receiving a permit may not transfer any portion of the premises covered by the permit to another user. G. Permits cannot be extended beyond midnight unless special permission has been granted by the DoS Superintendent. H. No Permit Application may be approved where the scheduled duration exceeds that for which payment is made. Renewal requires a new application. The longest permissible time period for a permit shall be twelve months, i.e., one fiscal year from July 1 through June 30. Permits may not cross fiscal years. I. A permit must be initiated at least 30 days prior to the scheduled event. J. The User must agree to the following when signing a Use Permit Application: 1. that the information provided on the Permit Application is complete and accurate to the best of the user s knowledge; 2. that rates are subject to change by the DoS Superintendent; 3. to observe all of the rules and regulations contained in this rule and in the Permit Application; 4. to conform to all applicable laws and regulations governing the use of school buildings; 5. to provide adequate supervision of the activity at all times; 6. to complete a User Organization Incident Report when safety/criminal incidents occur and return it to the Principal/designee and/or the School Safety Agent ( SSA ) if on duty; and, A-2

26 7. to hold the DoS harmless from any claim, loss or damage by reason of any act on the part of the applicant, its members, officers, agents, or any person using the premises at the invitation or with the permission of the user. K. Providing incorrect, incomplete, or misleading information on the Permit Application or the failure to conform to any of the guidelines and/or limitations contained in this regulation, as well as any other applicable laws and regulations governing the use of school buildings and grounds, may lead to the revocation of the permit, the denial of future Permit Applications, and other legal actions by the DoS. L. DoS may terminate any permit at any time when it is in the best interest of the DoS. Absent an emergency, a minimum of one week s notice will be provided. In the event of termination, DoS shall refund a pro-rated portion of the permit amount. M. An appropriate number of restrooms must be included in every Permit Application when the application is not for the use of a building that has restrooms. Where possible, separate restrooms should be made available for male/female adults and male/female children. N. If special services are required, the user must request approval for the provision of such services from the principal. The user is responsible for these additional costs. Examples of such services may include, but are not limited to the following: 1. utilizing a certificate of fitness holder to operate air conditioning equipment when required; 2. having a trained and knowledgeable individual to operate stage equipment, including lighting, sound, and stage sets. III. CARE OF SCHOOL PREMISES AND PROPERTY A. Users must exercise the utmost care in the use of school premises and property; make good any damage arising from the occupancy of any part of school premises; and hold harmless the DoS from any claim, loss, or damage by reason of any act on the part of the permit holder, its members, officers, employees and agents, or any person using or coming upon the premises by invitation or with the permission of the permit holder. B. Classrooms and offices must be left in the same condition in which they were found. Displays, papers, etc. must not be disturbed. If desks are moved, they should be returned to the original location before vacating the room. C. Modification or alteration, whether permanent or temporary, to the physical plant systems (i.e., electrical, heating, ventilation, air conditioning (HVAC), plumbing, or architectural) is prohibited without written approval from DoS. D. The following shall apply regarding the use of signs, banners and posters: 1. Signs, banners, posters, or other notices of the permitted activity shall not be posted on school property including, but not limited to, walls, gates, columns, doors, windows, floors, elevators, building exteriors, sidewalks, emergency telephones, light standards, and trees, except that they may be posted to indoor or outdoor notice boards, display cases or in other locations designated by the Principal at the time of the activity, only for the purpose of identifying the room where the activity is held. 2. Unless the activity is sponsored or supported by the school, the DoS, or Coast A-3

27 City, the following disclaimer is required to be made by the user on all public notices or any other material, including media or internet use, that mentions the school name or school address in connection with the activity to be held on school grounds, and on any signs posted inside or outside the school at the time of the activity. This activity is not sponsored or endorsed by the Coast City Department of Schools or Coast City. 3. The disclaimer must be clearly displayed in typeface of similar size as used in the public notice or materials. Use of the school name is restricted to identifying the location of the activity and may not create an impression of sponsorship or endorsement by the DOS, the school, and/or school personnel. 4. Other considerations: a. Approval of the school s Principal must be obtained prior to the posting of any material. b. The individual or organization responsible for disseminating the information shall be identified on all materials posted on school property. c. Material posted on school property may not demean or expose any individuals or groups to ridicule. d. Advertising related to private, commercial activities is not permitted on school property. IV. COSTS/ FEES FOR USING SCHOOL SPACE A. Non-profit organizations utilizing the schools primarily for the benefit of students in Coast City schools may utilize the schools without cost. B. All other organizations must pay costs for personnel attributable to the use of the premises, such as security, technicians for the use of special equipment, or custodians. C. If cancellation of a scheduled school usage is necessary, the user must notify the DoS of such cancellation at least one week in advance of the scheduled activity. The user could reschedule the event, which is the preferred alternative, or request a refund. Failure to provide one week s notice of cancellation will result in a 15% charge of the fee for the date when the activity was scheduled. V. USE OF SPECIALIZED ROOMS AND EQUIPMENT A. Where services by DoS employees are required by this rule, the user is responsible for all charges incurred. B. When shop rooms, home economics rooms, or similar rooms with special equipment are required, licensed DoS staff must be assigned. A DoS teacher and/or Custodial Entity/designee must be used for the operation of school equipment such as stage lighting and audio/visual apparatus. Prior approval of the Principal must be obtained in writing, with a copy of the approval affixed to the Permit Application. C. Where kitchen equipment is to be used in the preparation of food, an Office of School Food employee must be assigned. VI. INSURANCE The DoS may require that a user seeking a permit to conduct an activity or event maintain and pay all premiums on a Commercial General Liability insurance policy with a limit of not less than $1,000,000 per occurrence. Such policy shall list the DoS and Coast City, including their respective officials and employees, as A-4

28 additional insureds. Prior to and as a condition to any event, the user shall provide a certificate of insurance evidencing such insurance to the principal. VII. FIRE REGULATIONS The number of tickets sold or the number of persons admitted must not exceed the capacity listed on the fire regulations for the area. VIII. FUNDRAISING/DONATIONS/ADMISSION FEE A. The following applies if a user is charging admission (and/or has pre-sold tickets to an event), or is accepting or collecting money, or soliciting donations or conducting fundraising activities of any kind (including, but not limited to, the sale of refreshments): 1. The net proceeds (revenues less actual production costs) must be expended for the benefit of a charitable or educational purpose except that the proceeds may not be applied for the benefit of a society, association or organization of a religious sect or denomination, or a fraternal, secret or exclusive society or organization other than organizations of veterans of the military, naval and marine service of the United States and organizations of volunteer firefighters or volunteer ambulance workers. 2. The Permit Application must indicate the admission fee (if applicable); and the name of the organization designated as beneficiary of the proceeds resulting from admission fees, solicitations or donations. 3. The following must be attached to the Permit Application prior to final approval, and retained by the DoS: a. A letter on official stationery from the charitable or educational organization that is to receive the proceeds stating that it approves of the fundraising function and will use the proceeds for recognized charitable or educational purposes. The letter must be specific about the nature of these purposes (e.g., providing a Senior Citizens Program); b. A brief listing of expenditures and projected net proceeds by the user; and, c. Proof that the organization that is to receive the proceeds is a 501(c)(3) tax exempt organization. IX. POLITICAL AND ELECTION ACTIVITIES A. School buildings and other DoS facilities may be used for: 1. Polling places for holding primaries, general elections and special elections for the registration of voters; and 2. Conducting candidate forums, provided, all candidates are invited to participate. Permit applications for such forums must include a written representation that all candidates have been invited to participate. B. School Buildings may not be used for conducting political events, activities or meetings, unless the purpose is for a candidates forum as indicated above. C. The use of any school during extended hours by any person, group, organization, committee, etc., on behalf of, or for the benefit of any elected official, candidate, candidates, slate of candidates, or political organization/committee is prohibited except as indicated in Section (IX)(A)(2). D. No rallies, forums, programs, etc., on behalf of, or for the benefit of any elected official, candidate, candidates, slate of candidates, or political organization/committee may be held in a school building after school/business A-5

29 hours except as indicated in Section (IX)(A)(2) above. E. No candidate for public office or elected official seeking re-election may use any DoS school building after school business hours during the 60 calendar days prior to a primary and/or general election, except if directly related to the elected official s public duties and responsibilities. X. SUMMER DAY CAMPS, CARNIVALS, FAIRS, AND CONTACT SPORTS INSTRUCTION/ACTIVITIES A. The operation of Summer Day Camps is permitted as set forth below: 1. Camp operations must: a. be not-for-profit; b. be community oriented; c. be open to all eligible children of the community; and, d. maintain necessary insurance. 2. The user shall maintain and pay all premiums on a Commercial General Liability insurance policy with a limit of not less than $1,000,000 per occurrence, and an excess or umbrella liability policy (or policies) with a limit of not less than $5,000,000 per occurrence. All such policies shall list the DoS and the Coast City, including their respective officials and employees, as additional insureds. Prior to and as a condition to any event, the user shall provide a certificate of insurance evidencing such insurance to the principal. 3. The camp shall obtain and maintain all licenses, permits, etc., required by applicable laws and regulations for the operation of summer day camps. 4. The camp shall advise the parents or guardians of the campers by means of a written statement on all applications and/or registration forms that: THE (Name of the Camp) IS NOT A PROGRAM OF, OR OTHERWISE SPONSORED BY, THE COAST CITY DEPARTMENT OF SCHOOLS 5. The books and records of summer day camp operations shall be available for inspection and duplication by the DoS Superintendent or his designee within five (5) days of written notification. B. Carnivals and fairs are permitted as set forth below: 1. The user shall maintain and pay all premiums on a Commercial General Liability insurance policy with a limit of not less than $1,000,000 per occurrence. Such policy shall list the DoS and the Coast City, including their respective officials and employees, as additional insureds. Prior to and as a condition to any event, the user shall provide certificate(s) of insurance evidencing such insurance to the principal. 2. The user is responsible for ensuring that any equipment brought onto school property is erected in accordance with law and its design, and that full consideration has been given to equipment weight load, height, and clearance limitations. 3. No rides or equipment will be permitted that require the excavation or penetration of the ground surface to secure any such equipment or rides. C. The sponsoring organization for any contact sports instruction or activities shall maintain and pay all premiums on a Commercial General Liability insurance policy with a limit of not less than $1,000,000 per occurrence and an excess or umbrella liability policy of not less than $3,000,000 per occurrence. Such policies A-6