appellate brief


No. 98-1234
IN THE
SUPREME COURT OF BLISS

TAMAROA SCHOOL DISTRICT, et al.,

Appellants,
-against-
MELBORNE COVILL EVANS, et al.,
a.k.a., PARENTS FOR BETTER SCHOOLS,
Appellees.

On an order granting motion
for leave to appeal from the
Court of Appeal of the State of Bliss

BRIEF FOR THE APPELLEES
Travis A. Wise
Counsel for the Appellees
   Santa Clara Law School
   Santa Clara, California


QUESTIONS PRESENTED FOR REVIEW

  1. Does a public school program which prohibits parents from opting their children out of a mandatory extracurricular program, requiring 120 hours of work, violate parents� liberty interest under the Fourteenth Amendment to the United States Constitution?
  2. Does the First Amendment to the United States Constitution prevent a public high school from rejecting an ad submitted by a group of parents for publication in the ad section of a student-run yearbook, based on its content, while the District�s past practice shows the acceptance of similar ads?

TABLE OF CONTENTS
Questions Presented for Review
Table of Authorities
Opinion Below
Constitutional Provisions Involved
Statement of Facts
Summary of the Argument
Argument
  1. THE STRICT SCRUTINY TEST PROTECTS THE PARENTS� FUNDAMENTAL LIBERTY INTEREST TO SUPERVISE THE EDUCATION AND UPBRINGING OF THEIR CHILDREN AGAINST A COERCIVE AND INVOLUNTARY EXTRACURRICULAR PROGRAM WHICH FAILS TO MEET A COMPELLING STATE INTEREST

  1. Parents have a fundamental liberty interest which has been established throughout this country�s history and case law to direct their children's education and upbringing
  2. The strict scrutiny test should be applied due to the fundamental liberty interest burdened by the involuntary program requiring 120 hours of work outside of school
  3. This program fails the strict scrutiny test because it fails to fulfill a compelling state interest in a narrowly tailored fashion due to the coerciveness of the program, lack of adequate alternatives or an opt-out provision, and poor design leading to an inability to accomplish its goals

  1. PARENTS� LIBERTY INTEREST IS ALTERNATIVELY PROTECTED BY THE RATIONAL BASIS TEST AGAINST THIS COERCIVE AND INVOLUNTARY PROGRAM WHICH LACKS A REASONABLE RELATIONSHIP TO A LEGITIMATE GOVERNMENTAL OBJECTIVE

  1. The parents� liberty interest in directing their children�s education and upbringing is protected by the rational basis test from an involuntary program which requires extensive work outside of school
  2. This program fails to pass the rational basis test as it does not bear a reasonable relationship to a legitimate governmental objective because of its coercive means, lack of adequate alternatives, and lack of relationship to an educational and governmental function

  1. THE COURT PROPERLY GRANTED INJUNCTIVE RELIEF TO THE PARENTS BECAUSE THE SCHOOL�S INTERFERENCE WITH THE PUBLICATION OF THE PARENTS� PROPOSED AD IN THE STUDENT-RUN YEARBOOK VIOLATED THEIR FIRST AMENDMENT RIGHT TO FREEDOM OF EXPRESSION

  1. Because the Parents sought access only to the ad section of the yearbook, the relevant forum is the ad space, not the entire yearbook
  2. The School�s past practice of accepting a wide variety of ads relating to controversial social and political subjects, in spite of the school�s written policy, has created a limited public forum in the ad section to the yearbook
  3. The School�s rejection of the ad does not satisfy the appropriate standard of review under the limited public forum doctrine because it fails strict scrutiny standard.1. The School may not single out a particular expression for exclusion without a compelling state interest in a limited public forum
    2. Even if a compelling state interest is found to exist, the School may not exclude an expression in a limited public forum without following a regulation that is narrowly tailored to such compelling state interest

  1. EVEN IF THE YEARBOOK WAS A NONPUBLIC FORUM, THE SCHOOL�S REJECTION OF THE PARENTS� AD WAS STILL UNCONSTITUTIONAL BECAUSE IT CONSTITUTED AN UNREASONABLE, SUBSTANTIVE VIEWPOINT-BASED DISCRIMINATION
Conclusion

TABLE OF AUTHORITIES
(omitted)

OPINION BELOW
The Superior Court for the County of San Alfredo denied injunctive relief to the Plaintiffs, Parents for Better Schools, and held for the Defendants, Tamaroa School District. The order and opinion of the Superior Court is unreported. The Court of Appeal of the State of Bliss reversed the Superior Court�s judgment and granted declaratory judgment and injunctive relief against the Tamaroa School District. The opinion of the Court of Appeal is unreported but included in the transcript. (R. 15-17)

CONSTITUTIONAL PROVISIONS INVOLVED
U.S. Const. amend. I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
U.S. Const. amend. XIV, �1
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

STATEMENT OF FACTS
    The Appellees, fifty Wright High School parents organized as Parents for Better Schools ("Parents"), brought these two actions in the Superior Court for the County of San Alfredo in the State of Bliss seeking declaratory judgments and injunctive relief against the Appellants: the District, statutorily empowered by the State of Bliss to administer the educational facilities of the School; the Board; the Superintendent; and the principal of Wright High School ("Principal"). (R. 2) The Parents allege that the Appellants violated and denied Parents� rights under the First and Fourteenth Amendments to the United States Constitution. (R. 1)
FOURTEENTH AMENDMENT CLAIM
    Parents for Better Schools was formed by a coalition of parents at Wright High School with the goal of reinvigorating parental activity within the schools. (R. 4) The Parents are representative of the student population�s broad racial, economic and religious diversity. (R. 4) The majority of the students are minority, and 15% live below the poverty line. (R. 3) Private schools are not an option for many due to the cost. (R. 3)
    The District encompasses a large suburban area of Perfection, Bliss, and consists of three schools, of which Wright High School is one, of approximately 2,200 students each. (R. 3) The boundaries of the schools are geographically set, and parents are prohibited from changing their children�s public school. (R. 3) Education in the district is compulsory to the age of seventeen and parents can be fined and incarcerated for failure to comply with this law. (R. 3)
    In August, 1994, the Bliss Department of Education adopted a resolution for service programs in its public school districts. (R. 3) In response to this resolution, the Board met in the fall of 1994 to develop a service program for the District. (R. 4) The Board directed the Superintendent to implement a program. (R. 4) The Superintendent submitted to the Board a pilot program of mandatory service set to begin that school year. He was persuaded to adopt this pilot program by Wright High School�s principal, despite her lack of expertise in the area of such programs. He failed to consult with parents or the Board on how the program was to be implemented.
    The program mandated that students be assigned organizations at which they would work for 120 hours over the course of their high school education, to be performed off campus and not during school hours, and with no remuneration. The organizations would be selected by a school committee. (R. 5) Students would receive no direct supervision from the school, no transportation would be provided, and no substantive feedback given to the students regarding their service. (R. 5)
    Prior to voting on the program, the Board heard from two experts. Mr. Miller, an attorney for the Alliance for Justice and Parental Rights, emphasized that such a program would intrude into family decisions, force students to volunteer, and is opposed by the state teachers� association, 22 of 24 local school districts, and the Kirkwood PTA. (R. 7) He stated that the majority of the school�s students volunteer already, and are unenthusiastic about a mandatory program. (R. 7) Mr. Miller also commented that this "carrot" approach of forcing volunteerism may permanently alienate the students from community service, thus undermining the very values the District seeks to reinforce. (R. 7)
    He also presented evidence that in programs where parents were permitted to opt their children out, only five to six percent of parents elected to opt out. (R. 7) One expert, representing a community service special interest group, cited the program as helping students develop better skills, and as a gap filler for the social safety net. (R. 6) Mr. Evans, president of the Parents, voiced his concern that the school was taking over his role as a parent. (R. 7) He also demonstrated that this program will create a hardship for the increasing number of students who are required to work in order to supplement their family�s income. (R. 8)
    The program was implemented after a close vote by the Board. (R. 8) At the bench trial, evidence regarding the operation of the program during the prior year showed that twenty-five percent of the students did not make any progress towards the 120 hours of mandated service, and the remaining seventy-five percent made only "some strides" towards completion. Only six percent did the full thirty hours of work. (R. 12)
FIRST AMENDMENT CLAIM
    The Parents sought a declaration that Appellants violated their rights under the First Amendment to the United States Constitution by refusing to accept the ad they submitted for publication in the Wright High School yearbook, The Paintbrush. The Parents further sought injunctive relief, enjoining the principal from enforcing policies that resulted in the rejection of their ad. (R. 2)
    The Superior Court denied injunctive relief and held for Appellants on both claims. The Parents have appealed the lower court rulings to the Court of Appeal of the State of Bliss, which reversed the superior court�s judgment on both claims. (R. 2) The Court of Appeal ruled that since no compelling state interest exists to justify the School�s actions of rejecting the ads, censorship of the ad was arbitrary and unreasonable, and therefore, unconstitutional. (R. 17)
    In late 1995 Parents formally became a local chapter of the Alliance for Justice and Parental Rights and spent the winter and spring of 1996 working to raise its profile in the community on a variety of social issues. (R. 8) As part of that effort, in February, 1996, the Parents submitted a half-page ad with a check for $200 to The Paintbrush, a student-run high school yearbook, which the School rejected. (R. 8, 10) The principal rejected the ad submitted by the Parents on the basis that its content was anti-affirmative action in nature, noting its political view is inconsistent with the District�s position on affirmative action.
    The District authorizes its high schools to publish various school publications, including school yearbooks, and authorizes its school principals to set guidelines regulating their contents which are consistent with the School policy for acceptability and to determine whether a proposed ad satisfies the guidelines. (R. 8, 9) The District�s Policy on School Publications [footnote] lists examples of the ads that would be excluded, such as ones for drugs and alcohol, ones that are vulgar and racially offensive, and ones having explicitly sexual content. (R. 9)
FOOTNOTE: The District�s Policy on School Publications, as established by the Board, states: "A school must pursue its educational goals. Toward that end, a school should avoid the impression of endorsing a viewpoint at odds with its educational mandate. Because ads carry the attendant danger that a school may be seen as endorsing their contents, some categories of ad may be excluded." (R. 9)
    The School has adopted regulations that further require that all written materials submitted to School publications, including The Paintbrush, be reviewed by the publication�s faculty advisor and the Principal. (R. 9) The regulations allow the yearbook staff to accept ads and provide that students are to solicit ads for the primary purpose of raising revenue for the publication. (R. 9) The school�s policy for school publications, including the school newspaper and yearbook, states: "Student publications will not restrict free expression or diverse viewpoints within the bounds of responsible journalism or publishing." (R. 9)
    Production of The Paintbrush is funded solely through ads, which accounts for 40% of the production costs, and sales of individual copies which accounts for 60%. (R9, 10) The ad section, containing all the ads, is at the back of the yearbook. Approximately half of the ads are submitted by parents. (R. 10)
    The Paintbrush is not financially dependent on the school, and the student-only staff performs its editorial and staff functions as part of an extracurricular, after-school activity. (R. 10) The students use Wright High School facilities for meetings, editorial, layout, and staff functions, and the eleventh grade English teacher serves as the faculty advisor. (R. 10) Students do not receive academic credit for their work on The Paintbrush. (R.10)
    The Parents received a letter from the Principal rejecting the ad and returning its check. (R. 10) The Principal explained that the anti-affirmative action ad was not accepted because it was not in keeping with the commemorative purpose of The Paintbrush, fearing that the School would mistakenly be viewed as supporting anti-affirmative action. (R. 10) In the previous years, the School was engaged in a debate over its affirmative action policies. (R. 10, 11) From 1986 until 1994, the School had adopted affirmative action policies including a system of goals and timetables designed to increase the number of underrepresented minorities in teacher and administrator positions in the District. (R. 11) In support of the Principal�s rejection of the Parents� ad, the District testified about the protests and counter-protests at the Bliss State University Law School in Perfection from two years ago where law students boycotted classes and some protestors from both sides were arrested for throwing rocks. (R. 13)
    In response to rejection of its ad, the Parents sent a letter to the Principal, with copies to the members of the Board, asserting that school officials did not like the ad�s message or the group�s viewpoint on affirmative action: "It is clear that the District, which formalized a pro-affirmative action message and allowed itself to speak freely on these matters, was not interested in a free market place of ideas." (R. 11) Moreover, the Parents noted that its ad was no more political or controversial than some of the other ads that have been published in the past. (R. 11) Approximately 30% of the ads were run by the businesses. (R. 11)
    The ads included, but were not limited to, ones for churches and the armed forces. (R. 11, 12) Also, a group of students had listed an ad which included the words "Free Tibet and the Dalai Lama." (R. 12) Ads for candidates for student body elections, which are held in the Fall of each school year, and for school bond ballot measures had also been printed in The Paintbrush. (R. 12) The Principal has rejected only two ads in the past. One was an ad for cigars from a tobacco shop in Perfection, and the second for a "1-900" number for an "erotic psychic" phone service. (R. 12) The Parents asserted that its ad was on a general topic of important public interest and that the photograph contained in the ad was a device to catch the reader�s attention � neither the text nor the photograph [footnote] was designed to cause disruption or offense. (R.11, 12)
FOOTNOTE: The ad was arranged as follows: in the center was a black and white photograph of three women, one of whom appeared to be African-American, one Caucasian, and one Hispanic, standing in front of a school blackboard with the word "teachers" written on it. Over the photograph appeared the words, "AFFIRMATIVE ACTION = RACIAL DISCRIMINATION." Under the picture was written, "DON�T DISCRIMINATE �AFFIRMATIVELY� OR OTHERWISE. Hiring and keeping the best teachers for our children is all that should ever count." (R.8)

SUMMARY OF THE ARGUMENT
    The Parents� claim results from the Board�s implementation of a mandatory extracurricular program with no opt-out provision. This program burdens the parents liberty interest in the upbringing and education of their children, which a series of cases throughout the nineteenth century has been declared to be a fundamental liberty nterest. This finding is supported by a long history and tradition supporting the upbringing and education of a child as the primary responsibility of parents, and not of the state.
    The strict scrutiny test is applied to fundamental liberty interests, and would properly be applied to this program. The test requires the program to be narrowly tailored and promoting a necessary and compelling government interest. This experimental program fails this test. Withholding a diploma from students who are financially or academically unable to spend 120 hours doing mandatory service after school is coercive and burdensome. The lack of an opt-out clause or reasonable alternatives combined with the unusually lengthy service requirement demonstrates that the school could achieve its goals in a less restrictive manner. Further, the experimental program has failed to meet its goals.
    Alternatively, the rational basis test applies to rights of a less fundamental nature, and requires that the program be reasonably related to a legitimate state objective. A mandatory extracurricular program does not meet this test. The goals of this program are vague and of arguably little benefit to the students, and the program has failed to meet those goals.
    The School violated the First Amendment because it failed the standard of review provision of the forum analysis test applicable to this case. The violation is evident under the Cornelius forum analysis test, which consists of three parts: (1) the scope of the forum; (2) the nature of the forum; and (3) the standard of review. Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788 (1985). An evaluation of these three components shows that the School violated the Parents First Amendment rights.
    The relevant scope of forum at issue is the ad section only, rather than the entire yearbook, because the Parents sought limited access to the ad section only, not the whole yearbook. The nature of this forum is a limited-public forum as created by the School�s past practice of accepting ads in spite of its policy. The School�s rejection of the Parents� ad did not satisfy the strict scrutiny standard, which is the appropriate standard of review for a limited public forum, because the school did not demonstrate any compelling state interest which would allow exclusion of a particular expression. Furthermore, the manner in which the School rejected the Parents� ad did not satisfy the strict scrutiny standard because the School failed to do so in a narrowly tailored manner. Alternatively, the School violated the Parents First Amendment expression rights because the rejection constituted an unreasonable substantive viewpoint-based discrimination. For these reasons, the ruling of the appellate court granting injunctive relief to the Parents should be affirmed.

ARGUMENT
I. THE STRICT SCRUTINY TEST PROTECTS THE PARENTS� FUNDAMENTAL LIBERTY INTEREST TO SUPERVISE THE EDUCATION AND UPBRINGING OF THEIR CHILDREN AGAINST A COERCIVE AND INVOLUNTARY EXTRACURRICULAR PROGRAM WHICH FAILS TO MEET A COMPELLING STATE INTEREST.
    A parent�s right to raise and educate their child is a fundamental liberty interest because of the long history and tradition in America of holding parents responsible for their children�s upbringing and education. The strict scrutiny test protects interests such as raising one�s child against coercive, burdensome programs requiring 120 hours of work outside of school which do not serve a compelling government interest in a narrowly tailored fashion. For this reason, the right of Parents to raise and educate their children should be protected against this experimental mandatory service program.
A. Parents have a fundamental liberty interest which has been established throughout this country�s history and case law to direct their children's education and upbringing.
    Parents have a constitutionally protected liberty interest to direct the education and upbringing of their children under the substantive due process clause of the Fourteenth Amendment of the United States Constitution. Liberty interests which have historically been classified as "fundamental" are those which are "implicit in the concept of ordered liberty," and "deeply rooted in this Nation�s history and tradition." Palko v. Connecticut, 302 U.S. 319, 325 (1937); Moore v. City of E. Cleveland, 431 U.S. 494, 503 (1977). A series of Supreme Court cases establishes a precedent that the parental liberty interest is included in the Fourteenth Amendment�s substantive due process protections.
    The Supreme Court ruled against states forbidding foreign language instruction, stating that the parental liberty interest includes "the right of the individual to...establish a home and bring up children." Meyer v. Nebraska, 262 U.S. 390 (1923). The Court overturned an Oregon law prohibiting private schools, recognizing "the liberty of parents...to direct the upbringing and education of children under their control" and holding that "the child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations." Pierce v. Society of Sisters, 268 U.S. 510, 534 (1925). Amish parents have been permitted to withdraw their children from the public school system despite the state�s compulsory education laws. Recognizing "the fundamental interest of parents, as contrasted with that of the State, to guide the...education of their children," the Court found the basis for this liberty interest in "the history and culture of western civilization reflect[ing] a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition." While Yoder was based on the freedom of religion, the decision does not suggest that a parental liberty interest cannot also be found in other parts of the Constitution. Wisconsin v. Yoder, 406 U.S. 205 (1972).
    The Court has held that "Constitutional interpretation has consistently recognized that the parents� claim to authority...to direct the rearing of their children is basic to the structure of society." Ginsberg v. New York, 390 U.S. 629, 639 (1968) and that "care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." Prince v. Massachusetts, 321 U.S. 158, 166 (1944). Long before schools were established in America, society expected parents to educate their children and prepare them for duties as citizens of America. Lifestyle changes have necessitated public schools, but there is a lengthy history and tradition of parents being the primary educators of children.
    Finding the liberty interest to be fundamental gives parents who are taking an active interest in their children�s education tools with which to educate and raise their children. The liberty interest does not permit parents to "dictate the curriculum at the public school to which they have chosen to send their children." Brown v. Hot, Sexy & Safer Productions, 68 F. 3d 525 (1995). Finding a fundamental interest in this case, however, would not create this "slippery slope" problem. First, the issue at hand does not involve curriculum, as the program is to take place off campus, during non-school hours, and without school supervision. (R. 5) Second, the Parents did not choose to send their children to this school in light of the compulsory education law, enforceable by imprisonment, and the District�s prohibition of changing schools within the District. (R. 3)
    The Supreme Court has repeatedly upheld that the parental liberty interest to raise and educate a child is a fundamental right which is primary to the state�s interest in children. Recognizing this interest is consistent with protecting individual liberty as well as the history and tradition of reserving to parents the responsibility to decide how their children should be raised.
B. The strict scrutiny test should be applied due to the fundamental liberty interest burdened by the involuntary program requiring 120 hours of work outside of school.
    A fundamental liberty interest is protected by the strict scrutiny test against programs which fail to serve a compelling state interest in a narrowly tailored fashion. This level of scrutiny is needed to protect the right of a parent to raise and educate a child against coercive mandatory programs such as the one implemented by the Board. The Supreme Court has yet to rule on which level of scrutiny should apply to the parental liberty interest, but has repeatedly applied the strict scrutiny test to issues involving traditional and basic familial liberties, including the areas of contraception, abortion, religion and health care. Miranda Perry, Kids and Condoms, 63 U. Chi. L. Rev. 727 (1996). Extending the use of the test to educating and raising children is consistent with the Court�s previous decisions in Meyer, Pierce and Yoder which, as seen above, have held that the interest is fundamental. In Immediato v. Rye Neck School District, 73 F.3d 454 (1986) and Hendron v. Chapel Hill-Carboro City Schools, 89 F.3d 174 (1996), the lower courts incorrectly interpreted the Supreme Court�s decisions in the Meyer and Pierce cases as suggesting the application of the rational basis test. The Meyer and Pierce courts applied a scrutiny of "reasonableness" which looks much like the modern rational basis standard. However, the application of the standard, requiring that the legislation promote public health, safety, or other important public interests, is more indicative of a higher level of strict scrutiny. Joseph W. Ozmer II, Note: Who�s Raising The Kids, 30 Ga. L. Rev. 887 (1996). Further, Meyer and Pierce were decided well before the current "right to privacy" cases in which the Court, in 1961, established that the newer strict scrutiny test was the appropriate level of examination for infringement upon fundamental rights. Brown, 68 F. 3d at 525.
    Where parental fundamental liberty interests are involved, limitations "may be justified only by a compelling state interest and that legislative enactment�s must be narrowly drawn to express only the legitimate state interest at stake." Roe v. Wade, 410 U.S. 113, 154 (1973). The parental interest is deserving of strict scrutiny when confronted with this program which interferes with the raising and education of a child through coercive means and presents a severe financial hardship.
C. This program fails the strict scrutiny test because it fails to fulfill a compelling state interest in a narrowly tailored fashion due to the coerciveness of the program, lack of adequate alternatives or an opt-out provision, and poor design leading to an inability to accomplish its goals.
    Education is a legitimate state interest, but this program does not serve that interest in a narrowly tailored fashion. Excluding parental involvement from the raising of a child impermissibly trespasses on parental rights by substituting the state in the place of parents, without demonstrating a compelling necessity. This mandatory program forces students to perform work outside of school hours to the benefit of organizations selected by the school, at least one of which is the subject of a criminal investigation. (R. 13) The community benefits from the physical labor of students, without providing students with a clear educational purpose backed with guidance and supervision. The Board is imposing upon students an experimental program, without providing alternatives to those with valid hardships. Such a restrictive policy for an experimental pilot program is certainly not narrowly tailored, and not the least restrictive means of accomplishing the Board�s goals.
    The Curtis court stated that the coercion "exists where the governmental action is mandatory and provides no outlet for the parents, such as where refusal to participate results in a sanction or expulsion." Curtis v. School Comm. of Falmouth, 420 Mass. 749, 751 (1995). In Meyer, the court concluded that the state interest in promoting "civic development" could not be "coerced by methods which conflict with the Constitution � a desirable end cannot be promoted by prohibited means." Meyer v. Nebraska, 262 U.S. 390, 401 (1923). This program uses coercive means to further its questionable ends by withholding a diploma unless a student spends 120 hours outside of school in an program of disputed educational value. The lack of an opt-out provision means that parents� only option is to withhold their children from public schools. Private schools or home schooling is not an option for these parents, 15% of whom are below the poverty line.
    Students will be prohibited from graduating if they do not participate in this program. These students will have a bleak future, as jobs above minimum wage are largely unavailable to persons without a high school degree. The alternative is a GED, an inadequate and harmful alternative as employers and colleges do not see this as equivalent to a diploma.
    The high portion of minority students and high percentage of families living below the poverty line has caused an increase in the number of students who have to work after school to help support their families, according to Mr. Evans, the president of the parents� association. (R. 8) The 120 hours of mandatory service time, which takes away from students� abilities to financially support their families, coupled with the Board�s refusal to provide transportation to the sites, equates to a severe financial hardship on the families.
    Parents are in a better position than the Board to make decisions to enhance their child�s welfare and to provide their child with opportunities for advancement and growth through truly voluntary community service programs. An opt-out provision respects those parents who wish to take responsibility for their children and enables parents to act in the best interests of their children, while providing other students with opportunities for volunteering through the school. The lack of an opt-out provision assumes that responsible and concerned parents, such as the Appellees, do not know what is in their child�s best interest or cannot be trusted to act according to that interest. There is no evidence to support this assumption. Mr. Miller, one of the experts who testified at the Board meetings, stated that studies of condom distribution programs demonstrate that where parents are allowed to opt-out, only 5-6% do this. (R. 7) Therefore, it is questionable why the school Board did not allow an opt-out provision in this experimental program which has no alternatives. Eliminating the primary decision maker, who is best-suited and most informed as to the proper upbringing and education of the child in no way furthers the state�s interests.
    Condom distribution programs have voluntary participation and alternatives such as home instruction. Further, AIDS and teen pregnancy establish a compelling state interest. Allowing an opt-out for parents who provide similar instruction at home, i.e. volunteering privately, would be similar to mandatory classroom sex instruction which allowed opt-out for parents who gave similar instruction at home. Polls show that in this District, 60% of students volunteer on their own, without the need of a costly, coercive mandatory program, evidence that program is not reasonably necessary to encourage volunteerism.
    The program is also wholly ineffective and poorly designed, therefore failing to meet the requirement of a narrowly tailored program necessary to fulfilling a compelling state interest. The program provides absolutely no direct supervision by the school and no feedback to the students about their experience. Given this lack of guidance and responsiveness from the school to the students in the program, there can be no viable claim that education is taking place. This flaw has caused the program to fail in its goals. During the 1995-1996 school year, only 6% of the students accomplished the full thirty hours of work; 25% did not make any progress in the program at all; the remaining students made only "some strides" towards completion. (R. 12)
    This failure is also indicative of the counterproductive nature of a program touting mandatory volunteerism. The program assigns students where to "volunteer," and are discouraged from doing their own volunteer work because the 120 hour requirement is being forced upon them. Therefore the 60% of the students who were already volunteering on their own accord (R. 7) will now have to spend their time fulfilling the mandatory volunteer position, and most likely being less productive. This is evidenced by the testimony of several students at the trial who indicated that their work was unproductive and not educational. (R. 13)
    The coercion and burdens which this program places upon the parents are not the least restrictive nor the most narrowly tailored means of accomplishing the Board�s goal of educating children. A complete lack of viable alternatives demonstrates that the Board is unreasonably restricting the rights of the parents and not tailoring the program as narrowly as possible. Community service can benefit both community agencies and students, but the benefits can be achieved by utilizing several alternatives to a mandatory program while not affecting parental rights.
    There is no evidence that parental exclusion regarding their children�s involvement in this program is beneficial to the program�s success. This is a divisive measure which will outrage parents and result in costly litigation, while offering little in the way of countervailing benefit. This could be avoided by simply including parents in choices made about their children�s education.
II. PARENTS� LIBERTY INTEREST IS ALTERNATIVELY PROTECTED BY THE RATIONAL BASIS TEST AGAINST THIS COERCIVE AND INVOLUNTARY PROGRAM WHICH LACKS A REASONABLE RELATIONSHIP TO A LEGITIMATE GOVERNMENTAL OBJECTIVE.
    As an alternative to the strict scrutiny test, the parents� liberty interest in the upbringing and education of their children can also be examined under the rational basis test. This test requires a regulation to be reasonably related to a legitimate government objective. While education is such an objective, the Board may not use a program which is more coercive and presents a greater hardship to the parents than is needed to achieve those goals. This program does not meet the rational basis test because of the coercion and hardships presented in the implementation of the program.
A. The parents� liberty interest in directing their children�s education and upbringing is protected by the rational basis test from an involuntary program which requires extensive work outside of school.
    If the parents� right to raise and educate their children is deemed not to be a fundamental right, the rational basis test would likely be used to evaluate the mandatory program. The rational basis test requires that the governmental regulation in question be "reasonably related to a legitimate state objective" Daniel Stefaniuk, No Service, No Diploma, 14 T.M. Cooley L. Rev. 149, 163 (1997). Parents do not contest that their parental liberty interest in educating their child is subject to reasonable government regulation, and that compulsory education does not violate Parents� liberty right under the rational basis review. However, even under the rational basis test the state�s power to institute mandatory programs is limited.
    Foreign language restriction has been prohibited in Meyer v. Nebraska, 262 U.S. 390, as have laws banning private schools in Pierce v. Society of Sisters, 268 U.S. 510, 534 and even compulsory education has been rejected in light of a religious belief, Wisconsin v. Yoder, 406 U.S. 205. These cases demonstrate that the rational basis test requires that the level of government intervention be kept to a level of minimal interference. Even though the governmental purpose may be legitimate and substantial, its purpose cannot be pursued by means that broadly stifle personal liberties when the same end can be more narrowly achieved. Roe, 410 U.S. at 154.
B. This program fails to pass the rational basis test as it does not bear a reasonable relationship to a legitimate governmental objective because of its coercive means, lack of adequate alternatives, and lack of relationship to an educational and governmental function.
    This program coerces parents into submitting their children to this mandatory program without allowing parents or students feasible alternatives in the face of coercion and severe financial hardship. The Immediato and Hendron cases, supra, which have previously upheld mandatory programs under the rational basis test, are to be differentiated from this case because those programs involved less than half the number of hours in this case, reflecting that the burden imposed upon the students and the parents was significantly less. Further, the families in this case are under a financial hardship which results in their children being unable to participate in the program due to familial obligations. The facts examined above also indicate that the program has failed to meet its goals, and is therefore not reasonably related to the government�s purpose of education.
    The Board argues that the legitimate state objective is citizenship training. Instilling civics in a child is the responsibility of the parents, not the schools; therefore, the purpose which the Board sets forth is in fact reserved to the parents: "Care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." Prince v. Massachusetts, 321 U.S. 158, 166 (1944). The facts examined above also indicate that this program has largely failed to achieve its goals. (R. 12) Therefore, this program should not be permitted to continue without viable alternatives or an opt-out provision.
    The Immediato court placed limits upon how far a mandatory program such as this one can go in coercing and posing hardships on parents. "The District was reasonable in concluding that these goals were best achieved by having students actually perform service for a limited amount of time, and discuss that service." Immediato v. Rye Neck School District, 73 F.3d 454, 462 (1986). This case is distinguished from Immediato which only required 40 hours; this case requires 120. Further, the program in this case has no provision for the students to discuss the service with their teachers or classmates, which would otherwise indicate its goal to be education.
    This program bears no reasonable relation to education of children. Its poor design, coercion and hardship, and failure to succeed in its educational goals distinguish this program from one which is designed to educate students. The program does not bear a reasonable relation to a valid governmental interest and for that reason does not pass the rational basis test and is therefore unconstitutional.
III.  THE COURT PROPERLY GRANTED INJUNCTIVE RELIEF TO THE PARENTS BECAUSE THE SCHOOL�S INTERFERENCE WITH THE PUBLICATION OF THE PARENTS� PROPOSED AD IN THE STUDENT-RUN YEARBOOK VIOLATED THEIR FIRST AMENDMENT RIGHT TO FREEDOM OF EXPRESSION.
    This Court should affirm the lower court�s decision granting injunctive relief to the Parents and enjoining the School from interfering with the publication of their ad in The Paintbrush, a student-run yearbook, because the School violated the First Amendment when it censored Parents� proposed ad from the student-run yearbook without showing a compelling state interest and narrowly tailored means to justify its actions. The School�s violation of the First Amendment is evident under the three-fold forum analysis test set forth in Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788 (1985), which applies a strict scrutiny standard to a limited public forum.
A. Because the Parents sought access only to the ad section of the yearbook, the relevant scope of forum at issue is the ad space, not the entire yearbook.
    To determine whether the First Amendment permits the School to exclude the Parents� ad from the student-run yearbook, we must first decide whether the forum consists of the entire yearbook, as the School contends, or the ad section only, as the Parents maintain.
    In Cornelius, where the respondents sought access for solicitation to the Combined Federal Campaign (CFC) in the federal workplace, the Court found that the relevant forum at issue was the CFC and not the entire federal workplace, reasoning that the forum analysis is not completed merely by identifying the government property at issue; rather, in defining the forum the determining factor is the access sought by the party seeking expression. 473 U.S. at 802.
    For example, in Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37 (1983), the Court examined the access sought by the speaker and defined the forum as a school's internal mail system and the teachers' mailboxes, notwithstanding that an "internal mail system" lacks a physical situs. In Lehman v. City of Shaker Heights, 418 U.S. 298, 300 (1974), where petitioners sought to compel the city to permit political ads on city-owned buses, the Court treated the ad spaces on the buses as the forum.
    Here, the Parents sought access only to the ad section of the student-run yearbook as a particular means of communication, so consistent with the approach taken in prior cases, this court should find that the ad section, rather than the entire yearbook, is the forum.  Furthermore, the Parents may argue that the relevant scope of forum at issue is the ad section because the Parents were permitted to have access to the ad section only, not the entire yearbook. The Paintbrush was a student-run high school yearbook, and the Parents� ad would not have been permitted to appear anywhere but in the ad section.
    Based on either the Cornelius test applying the sought access standard or the alternative argument based on permission standard, the relevant scope of forum should be the ad section only.
B.  The School�s past practice of accepting a wide variety of ads relating to controversial social and political subjects, in spite of the School�s written policy, has created a limited public forum in the ad section to the yearbook.
    Having identified the forum as the ad section only, the Court must decide whether it is nonpublic or public in nature in order to determine the applicable standard of review.  The School�s past practice, despite its policy, shows its intent to create a limited public forum for use by parents and businesses to submit ads for publication.
    In Perry, the Court identified three types of forums: the traditional public (or open) forum, the limited (or designated) public forum, and the nonpublic (or closed) forum. Traditional public forums are those places which "by long tradition or by government fiat have been devoted to assembly and debate," Perry, 460 U.S. at 45, such as public streets and parks. In traditional public forums, the state may only impose reasonable time, place or manner restrictions. Id. at 46. The limited public forum is created by government designation for limited purposes, and it is regulated the same way as in traditional public forums as long as it is kept open. Id., at 45-46. The nonpublic forum consists of closed public property such as a prison or a military base. The state may impose any restrictions on expression so long as they are reasonable and not content based. Ibid.
    The distinction between the nonpublic forum and the limited public forum can be made by examining the government intent regarding the accessibility of the forum shown by the policy and practice of the government. Id., at 47. Intent may also be shown by the nature of the property and its compatibility with expressive activity.
    In Widmar v. Vincent, 454 U.S. 263 (1981), the Court found that a state university�s express policy regarding meeting facilities evidenced a clear intent to create a public forum. In Madison Joint School District v. Wisconsin Employment Relations Comm'n, 429 U.S. 167 (1976), the Court held that a forum for citizen involvement was created by a state statute providing for open school board meetings. Similarly, the Court found that a municipal auditorium and a city-leased theater created a public forum because they were designed for and dedicated to expressive activities. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 555 (1975). In San Diego Committee Against Registration and the Draft (CARD) v. Governing Board of Grossmont Union High School, 790 F.2d, 1471 (9th Cir. 1986), the Ninth Circuit held that the student newspapers constituted limited public forums and that CARD's first amendment rights had been violated by the district's refusal to publish its anti-draft ad. Id., at 1492.
    In this case, District policy does not expressly allow exclusion of anti-affirmative action ads. The only types of ads that are expressly excluded are ones that are socially and legally inappropriate for a high school audience, such as ones for drugs and alcohol, ones that are vulgar and racially offensive, and ones having explicitly sexual content. Anti-affirmative action does not belong to such a category.
    Furthermore, the School policy specifically advocates free expression and diverse viewpoints. The School failed to justify why anti-affirmative action should fall beyond this boundary. The Principal only expressed her personal viewpoint that the ad was not accepted because it was not in keeping with the commemorative purpose of the yearbook.
    Finally, the School regulation regarding The Paintbrush specifically calls for solicitation of ads from businesses and parents as the main source of funding. The Parents contend that this implicitly creates a limited public forum, as the forum is no longer closed but instead designated for use by the parents and the businesses wishing to publish their ads.
    The School�s past practice also shows its intent to create a limited public forum in that it has accepted ads that were equally political or controversial as the ad in the present case, if not more. For instance, past ads included ones for churches and the armed forces. In addition, a group of students had purchased an ad which included the words "Free Tibet and the Dalai Lama." Ads for candidates for student body elections, which are held in the Fall of each school year, and for school bond ballot measures had also been printed in The Paintbrush. These examples of the School�s past practice of accepting political or controversial ads suggest tacit approval of such contents and reinforce the notion that the School intended to create a limited public forum. Furthermore, the School in the past has only twice rejected ads in The Paintbrush, which shows its liberal intent to open the forum to the public.
    An examination of the nature of the Government property involved strengthens the conclusion that the ad section is a limited public forum, Cornelius, 473 U.S., at 805, because this reflects the School�s intent to open the forum to the public for free expression without its interference. Additionally, it helps to distinguish the present case from Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988), which states that the appropriate test to determine whether the ad space has become a limited public forum is whether the school is rejecting the ad from publication with "reasonable exercise of legitimate pedagogical concerns." This test, however, requires that there exist the school�s official imprimatur to the publication under concern. The Paintbrush is not financially dependent on the school, and the student-only staff performs its editorial and staff functions as part of an after-school, non-curricular activity. The only remote connection between the ad section and the School is that the students use the School facilities for its functions, and a teacher serves as the faculty advisor. The Paintbrush, therefore, lacks official imprimatur, and the Hazelwood test is inapplicable.
    The District may incorrectly argue that the relevant forum at issue is not the ad section only, but rather the entire yearbook. However, the scope of the forum at issue is actually not determinative of the nature of the forum but only helps to analyze it. What determines the type of forum is the analysis of the intent of the government to designate the open forum based on its practice and policy regarding the forum, and the nature of such forum, taken as a whole.
    The District may further incorrectly contend that the forum at issue is nonpublic because of its nature. A teacher served as a faculty advisor, and the Principal could regulate the contents of the yearbook. The mere facts that the production of the publication took place on the school premises, and that the Principal holds the authority to review the content, do not create the "sufficient nexus" to establish the official imprimatur necessary under the Hazelwood test. Thomas v. Board of Education, Granville Central School Dist, 607 F.2d 1043 (2nd Cir. 1979). Also, the past practice of the School in accepting similar ads contradicts such alleged intent. Consequently, the School�s argument fails.
C. The School�s rejection of the ad does not satisfy the appropriate standard of review under the limited public forum doctrine because it fails Perry�s strict scrutiny standard; therefore, it violates the Parents� First Amendment right to freedom of expression.
    In this limited public forum, the appropriate standard of review for regulation of expression is the strict scrutiny standard. The restriction must be "necessary to serve a compelling state interest and ... narrowly drawn to achieve that end." Perry Ed. Assn., 460 U.S. at 45. This means that the governmental entity such as the School must show a compelling state interest to justify the denial of an expression protected by the First Amendment, such as the Parents� ad. See Cornelius, 473 U.S. at 800. Regulation of expression in the limited public forum must be narrowly tailored to the compelling state interest. Here, the School fails to show a compelling state interest which would justify its rejection of the ad submitted by the Parents. Even if a compelling state interest was found to exist, the School nonetheless fails to demonstrate that the rejection of ad was narrowly tailored to a compelling state interest. Having failed the two-fold strict scrutiny test, the School violated the Parents� First Amendment right.
1. The School may not single out a particular expression for exclusion without a compelling state interest in a limited public forum.
    Having created a limited public forum, the School must show that its interests rise to the level of compelling state interests. See Cornelius, 473 U.S. at 800. However, none of the School�s proffered objectives for rejecting the ad is compelling to warrant the exclusion of the Parents� ad.
    First, the School offered as its reason for rejecting the ad that it wished to maintain neutrality and avoid the appearance of endorsing controversial or inaccurate viewpoints regarding the affirmative action. It contends that "avoiding the appearance of political favoritism is a valid justification for limiting speech in a nonpublic forum." The Supreme Court, however, has flatly rejected that justification in the context of limited public forums. Widmar, 454 U.S., at 274. In addition, the School�s proffered justification fails to explain why the Parents are excluded when other groups, such as Planned Parenthood, would be allowed to participate in a limited public forum. See Cornelius, 473 U.S. at 829.
    Nor is the School�s "interest in avoiding controversy" a compelling state interest that would justify the exclusion of the ad. The managers of the theater in Southeastern Promotions, 420 U.S. at 563-564 , no doubt thought the exclusion of the rock musical Hair was necessary to avoid controversy; and the school officials in Tinker v. Des Moines School Dist., 393 U.S. 503, 509-510 (1969), thought their exclusion of students protesting the Vietnam War was necessary to avoid controversy. Yet in those cases, both of which involved limited public forums, the Court did not accept the mere avoidance of controversy as a compelling governmental interest. Rather, the Tinker Court held that in order to justify the exclusion of particular expressive activity, the government "must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint." 393 U.S. at 509. The government must show that the excluded speech would "materially and substantially interfere" with the other activities for which the public property was intended. Ibid. No such showing has been made here.
    The record completely fails to support any assertion that the "controversy" threatened to interfere with the purposes of the yearbook ad section. The fact that the ad section is limited to a particular class of speakers does not mean that it is not dedicated to "the free exchange of ideas." Ibid. A central purpose of the ad section obviously is to give parents and businesses the opportunity to publish their ads, and the free exchange of ideas about affirmative action issue is not to be infringed merely because a pro-affirmative action group exists in the community. Even if the avoidance of controversy in the forum itself could ever serve as a legitimate governmental purpose, the record here does not support a finding that the inclusion of the Parents� ad in the yearbook would threaten a material and substantial disruption.
    The School also reasoned that it rejected the Parent�s ad to prevent disruption. However, the Tinker "material and substantial interference" rule states that "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." 393 U.S. at 508. While it is true that two years prior there was an incident of protests and counter-protests regarding the affirmative action issue at the Bliss State University, the demonstrators were on both sides of the issue. Therefore, this incident cannot be attributed solely to the anti-affirmative action group, making the fear of disturbance by the anti-affirmative action ad undifferentiated. Also, there is no direct evidence that the Parents� anti-affirmative ad in this case would cause the same result now. Neither that incident nor the Parents� proposed ad has yet created any substantial interference to the School�s educational objective. Furthermore, the incident from two years ago is too attenuated to be considered as a material and substantial interference. Thus, the School�s reason for rejecting the Parents� ad is based on nothing more than mere "undifferentiated fear or apprehension" under Tinker.
    The School also reasoned that it wished to disassociate the school from speech inconsistent with its educational mission, which would outweigh the Parents� fundamental right to expression. While the School expressly excludes any discussion of affirmative action from its curriculum on civil rights, the record does not support the finding that the Parents� anti-affirmative ad would contradict the School�s such educational mission. The School�s argument is predicated on the assumption that the School�s educational mission supports pro-affirmative action point-of-view. However, the fact indicates that the School wishes to remain neutral on the issue. If the School is neutral on the issue, then the Parents� anti-affirmative action does not oppose that view but merely presents a differing view.
2. Even if a compelling state interest is found to exist, the School may not exclude an expression in a limited public forum without following a regulation that is narrowly tailored to such compelling state interest.
    Even if a compelling state interest is found to exist, an outright rejection of the ad was not a narrowly tailored means to allow exclusion of the Parents� expression. See Perry, 460 U.S. at 45. Reasonable time, place and manner regulations are permissible, but a content-based prohibition must be narrowly drawn to effectuate a compelling state interest. Widmar, 454 U.S., at 269-270. A simple disclaimer in the ad by the School would have avoided the appearance of support for the ad.
    The School may incorrectly contend for the "rational basis" standard of review, which provides that the regulation of speech would be "legitimate if it was reasonable in light of the goal of reserving the forum for its intended purposes and not an effort to suppress expression" merely because the School opposed the Parents� point of view. See Perry, 460 U.S. at 46. This argument fails because: (1) reasonable basis standard applies only to the nonpublic forum; (2) the regulation must serve to maintain the forum for its intended purposes; and (3) this standard does not apply when the regulation is content-based. See Perry, 460 U.S. at 45, 46.
    Even if this Court were to find the forum to be nonpublic, the School fails on items 2 and 3 above. The intended purpose of the forum is to solicit the ads from the parents and businesses in order to raise revenue for the yearbook. Regulation is proper only when the content is inconsistent with the School policy for publications, which does not expressly exclude the issue of affirmative action. Even if the exclusion was found to serve the intended purpose of the forum, the School�s argument should yet fail because the regulation was content-based. First Amendment rights are considered "fundamental" interests, so restriction upon them require a strict scrutiny rather than just showing a rational basis for the action.
IV. EVEN IF THE YEARBOOK WAS A NONPUBLIC FORUM, THE SCHOOL�S REJECTION OF THE PARENTS� AD WAS STILL UNCONSTITUTIONAL BECAUSE IT CONSTITUTED AN UNREASONABLE, SUBSTANTIVE VIEWPOINT-BASED DISCRIMINATION.
    The School contends that the anti-affirmative viewpoint in the ad was controversial and political, and because of that it was at odds with its educational mandate. However, the Hazelwood Court ruled, "[i]f mere incompatibility with the school�s pedagogical message were a constitutionally sufficient justification for the suppression of student speech, our public schools would be converted into "enclaves of totalitarianism," Tinker, 393 U.S. at 511, that "strangle the free mind at its source." West Virginia Board of Education v. Barnette, 319 U.S. 624, 637 (1943). The First Amendment permits no such blanket censorship authority. Hazelwood, 484 U.S. at 287.
    Here, the School�s rejection of the Parents� ad constituted an unreasonable, substantive viewpoint-based discrimination on its face. The Principal�s rejection letter to the Parents states that she was concerned that the ad "would mistakenly be associated with the school," which indicates that the Principal and the School do not support anti-affirmative viewpoint substantively.
    The relationship between the Parents and the School regarding the affirmative action issue further strengthens this argument. For eight years, the School adopted affirmative action policies designed to increase the number of minorities in teacher and administrator position in the District. The Principal�s rejection letter, combined with the School�s past pro-affirmative action policies, strongly indicate that the School is biased towards pro-affirmative action viewpoint.
    The School�s rejection of the Parents� ad was also unreasonable. Generally, public educators must accommodate some student expression even if it offends them or offers views or values that contradict those the school wishes to inculcate, just as the public on the street corner must, in the interest of fostering "enlightened opinion," Cantwell v. Connecticut, 310 U.S. 296, 310 (1940), tolerate offensive speech. Id., at 309. Tinker struck the balance and held that official censorship of student expression is unconstitutional unless the speech "materially disrupts class work or involves substantial disorder or invasion of the rights of others...." 393 U.S., at 513. School officials may not suppress "silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of" the speaker. Id., at 508. The "mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint," Id., at 509, or an "unsavory subject," Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 688-689 (1986), does not justify official suppression of student speech in the high school. Hazelwood, 484 U.S. at 281.
    In this case, the Principal�s concern over the Parents� message was not supported by any evidence that passes the Tinker "material and substantial" disruption test. The demonstration incident that occurred two years ago at a local university does not materially or substantially disrupt class work or invade the rights of others. Also, the Parents themselves have not acted to create any disorder or disturbances. The Principal and the School, at most, desired to avoid the discomfort and unpleasantness that accompany a viewpoint different from theirs.
    Thus, the School the school�s rejection of the parents� ad constituted an unreasonable, substantive viewpoint-based discrimination, and therefore, unconstitutional regardless of the nature of the forum.

CONCLUSION
    For the foregoing reasons, the decision of the Court of Appeal of the State of Bliss granting declaratory judgment and injunctive relief against the Tamaroa School District should be affirmed.
Respectfully submitted,
/s/
Travis A. Wise
Counsel for Appellees

Popular posts from this blog

power elite vs pluralist explanation models

big 4 vs. law firm comparison from an industry perspective

california bar exam primer