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US District Court : EDUCATION | CONSTITIONAL - what's curricular, not; injunction

1
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Straights and Gays for Equality (SAGE);
N.R., by her next friend and parent, S.R.; and
H.W., by her next friend and parent, M.W.,
Plaintiffs,
v. Civ. No. 05-2100 (JNE/FLN)
ORDER
Osseo Area SchoolsDistrict No. 279; Larry
A. McGee, Dean G. Henke, John L. Nelson,
Kim Green, Linda J. Etim, Judith G. Peterzen,
John OSullivan, Jr., and Wendy Loberg,
in their individual and official capacities;
Dr. James L. Smith, in his individual capacity; and
Maple Grove Senior High School,
Defendants.
Thomas C. Kayser, Esq., David P. Pinto, Esq., and Genevieve M. Zimmerman, Esq., Robins,
Kaplan, Miller & Ciresi L.L.P., appeared for Plaintiffs Straights and Gays for Equality (SAGE);
N.R., by her next friend and parent, S.R.; and H.W., by her next friend and parent, M.W.
Lawrence J. Hayes, Jr., Esq., and Stephen M. Knutson, Esq., Knutson, Flynn & Deans, P.A.,
appeared for Defendants Osseo Area SchoolsDistrict No. 279, Larry A. McGee, Dean G.
Henke, John L. Nelson, Kim Green, Linda J. Etim, Judith G. Peterzen, John OSullivan, Jr.,
Wendy Loberg, Dr. James L. Smith, and Maple Grove Senior High School.
A student group, Straights and Gays for Equality (SAGE), and two of its members, N.R.
and H.W., brought this action against a school district, Osseo Area SchoolsDistrict No. 279
(District); a senior high school, Maple Grove Senior High School (MGSH); and various school
board members and school staff to redress alleged statutory and constitutional violations arising
out of SAGEs inability to gain access to school facilities on the same terms as other student
groups. In April 2006, the Court granted Plaintiffs Motion for a Preliminary Injunction.
Defendants appealed, and the United States Court of Appeals for the Eighth Circuit affirmed.
2
Straights & Gays for Equal. (SAGE) v. Osseo Area Sch.Dist. No. 279, 471 F.3d 908 (8th Cir.
2006). Seeking to make the preliminary injunction permanent, SAGE now moves for partial
summary judgment.1 For the reasons set forth below, the Court grants the motion.
I. BACKGROUND
MGSH is a senior high school in the District. There are more than sixty student groups at
MGSH. Pursuant to the Districts Student Group Framework (Framework), the groups are
classified as either curricular or noncurricular. The Framework defines curricular student groups
as [r]elated to the schools curriculum and allows them to meet before school, during
instructional time, or after school at the discretion of the principal. It allows curricular student
groups to communicate via PA [public address system], Yearbook, [or] scrolling screen and to
use other avenues of communication. The Framework also provides that school funds may be
expended on curricular student groups and that the groups may engage in fundraising or field
trips at the discretion of the schools principal.
The Framework defines noncurricular student groups as [n]ot related to the schools
curriculum. Under the Framework, their access for meetings is [ l]imited. Noncurricular
student groups [m]ay meet before or after [the] regular school day (not during school day), and
they [m]ay not interfere with district or school operation. To announce a meeting,
noncurricular student groups may place a poster on a community bulletin board and a poster
outside the meeting space. They may not use the schools public address system, yearbook,
scrolling screen, or other avenues of communication to make announcements. Noncurricular
student groups may not engage in fundraising or field trips, and school funds cannot be expended
on them.
1 N.R. and H.W. graduated from MGSH in spring 2006.
3
SAGE is an unincorporated association of students at MGSH. According to the affidavit
of N.R., [i]ts purpose is to promote tolerance and respect for [MGSH] students and faculty
through education and activities relevant to gay, lesbian, bisexual and transgender . . . individuals
and their allies. SAGE is one of approximately ten student groups at MGSH classified as
noncurricular. SAGE contends that its inability to take advantage of school facilities on the same
terms as other student groups constitutes a violation of the Equal Access Act, 20 U.S.C. 4071
(2000), and the First Amendment. SAGE now moves for summary judgment on those claims.
II. DISCUSSION
Summary judgment is proper if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.
R. Civ. P. 56(c). The moving party bears the initial responsibility of informing the district court
of the basis for its motion, and must identify those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). If the moving party satisfies its burden, Rule 56(e) requires the nonmoving
party to respond by submitting evidentiary materials that designate specific facts showing that
there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986). In determining whether summary judgment is appropriate, a court must look at
the record and any inferences to be drawn from it in the light most favorable to the nonmoving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
The Equal Access Act prohibits any public secondary school that receives federal
financial assistance and that has a limited open forum from deny[ing] equal access or a fair
opportunity to, or discriminat[ing] against, any students who wish to conduct a meeting within
4
that limited open forum on the basis of the religious, political, philosophical, or other content of
the speech at such meetings. 20 U.S.C. 4071(a). A public secondary school has a limited
open forum whenever such school grants an offering to or opportunity for one or more
noncurriculum related student groups to meet on school premises during noninstructional time.
Id. 4071(b). [E]ven if a public secondary school allows only one noncurriculum related
student group to meet, the Acts obligations are triggered and the school may not deny other
clubs, on the basis of the content of their speech, equal access to meet on school premises during
noninstructional time. Bd. of Educ. v. Mergens, 496 U.S. 226, 239 (1990); see Straights &
Gays for Equal., 471 F.3d at 911.
In Mergens, the Supreme Court defined noncurriculum related student group as any
student group that does not directly relate to the body of courses offered by the school. 496
U.S. at 239; see Straights & Gays for Equal., 471 F.3d at 911. The Supreme Court narrowly
defined curriculum related student group as a group that directly relates to a schools
curriculum:
In our view, a student group directly relates to a schools curriculum if the subject
matter of the group is actually taught, or will soon be taught, in a regularly offered
course; if the subject matter of the group concerns the body of courses as a whole;
if participation in the group is required for a particular course; or if participation
in the group results in academic credit. We think this limited definition of groups
that directly relate to the curriculum is a commonsense interpretation of the Act
that is consistent with Congress intent to provide a low threshold for triggering
the Acts requirements.
Mergens, 496 U.S. at 239-40; see Straights & Gays for Equal., 471 F.3d at 911. The circle of
groups considered curriculum related has a relatively small circumference and does not include
anything remotely related to abstract educational goals. Straights & Gays for Equal., 471
F.3d at 911 (quoting Mergens, 496 U.S. at 244). The inquiry, then, is whether a curricular group
5
is solidly connected to an element of the actual (or imminent) curriculum, rather than whether the
group is in harmony with broad educational goals.
MGSH is a public secondary school, it receives federal financial assistance, and it has a
limited open forum. It is undisputed that the Equal Access Act applies to MGSH. SAGE
contends that several MGSH student groups classified as curricular are actually noncurriculum
related student groups. The groups identified by SAGE include: Synchronized Swimming;
Cheerleading; Spirit Council; and Black Achieve rs. By denying SAGE the same access to
school facilities afforded to other noncurriculum related student groups, MGSH allegedly
violated the Equal Access Act. The District bears the burden of showing that the student groups
identified by SAGE directly relate to MGSHs curriculum. See Mergens, 496 U.S. at 40; Pope v.
E. Brunswick Bd. of Educ., 12 F.3d 1244, 1252 (3d Cir. 1993).
With regard to Synchronized Swimming and Cheerleading, the District contends that they
are not student groups within the meaning of the Equal Access Act. It cites no authority for
the proposition, but contends that the Act does not apply to a student group that does not engage
in expressive conduct or speech. It further contends that participation in sports or athletics is not
speech. Consequently, the District concludes, neither Synchronized Swimming nor
Cheerleading is a student group within the meaning of the Act. The Court rejects the Districts
argument. The argument conflicts with the Supreme Courts broad interpretation of the Act. See
Mergens, 496 U.S. at 239. It also disregards the Supreme Courts application of the Act to
student groups whose activities, according to the Districts argument, would not constitute
speech. See id. at 245-46 (concluding that clubs related to chess and scuba diving were
noncurriculum related student groups). Cheerleading is classic First Amendment speechthe
6
use of verbal and physical forms of communication to create team spirit.2 See Straights & Gays
for Equal., 471 F.3d at 911.
The District next argues that Synchronized Swimming and Cheerleading directly relate to
MGSHs curriculum because participation in the groups results in academic credit. In support,
the District states that all students must complete the Life Fitness course to graduate. The course
requires students to implement a physical fitness plan and to document progress through daily
log entries. Because students have used their participation in Cheerleading and Synchronized
Swimming to implement their physical fitness plan, the District contends that participation in the
groups results in academic credit. Consequently, the District argues, Cheerleading and
Synchronized Swimming directly relate to MGSHs curriculum.
SAGE contends that the District is precluded from arguing that participation in
Cheerleading and Synchronized Swimming results in academic credit because this Court, in
granting the preliminary injunction, and the Eighth Circuit, in affirming the grant of the
preliminary injunction, stated that participation in the groups does not result in academic credit.
The Court rejects SAGEs argument. See United States Sec. & Exch. Commn v. Zahareas, 272
F.3d 1102, 1105 (8th Cir. 2001); Patterson v. Masem, 774 F.2d 251, 254 (8th Cir. 1985).
SAGE next argues that the connection between academic credit and participation in
Cheerleading and Synchronized Swimming is too attenuated. See Mergens, 496 U.S. at 238
(The logic of the Act also supports this view, namely, that a curriculum- related student group is
one that has more than just a tangential or attenuated relationship to courses offered by the
school.). The Court agrees. It is undisputed that students may engage in activities during class
or outside of the school day to implement their physical fitness plans. Any activity that improves
2 The Court notes that the Framework grants Cheerleading and Synchronized Swimming
access to various means of communication at MGSH.
7
or maintains a students fitness level is permissible. Accordingly, students have used walks with
mom, walks in a mall, walks home, walks with a dog, hackeysack, pond hockey, and snow
shoveling to implement their physical fitness plans. Acceptance of the Districts argument
would lead to the absurd result that student groups devoted to any of these activities be deemed
curriculum related student groups.3 The Court recognizes that a school can legitimately classify
activities such as cheerleading and synchronized swimming as curriculum related by granting
physical education academic credit to students who participate in such groups. Straights &
Gays for Equal., 471 F.3d at 913. In this case, the District has not done so.4 The relationship
between academic credit and participation in Cheerleading and Synchronized Swimming to
satisfy part of a physical fitness plan that is required for the Life Fitness course is too attenuated
to satisfy the results in academic credit test of Mergens. See 496 U.S. at 239. The Court
therefore concludes that the District has not satisfied its burden to demonstrate that Cheerleading
and Synchronized Swimming directly relate to MGSHs curriculum.5
3 The Court notes that the District has not consistently applied the criteria advanced here.
The record reveals that students have used various forms of dance to implement their physical
fitness plans. One student group, Clich, is a hip hop dance troupe. Participation in it could be
used to satisfy a students physical fitness plan. Nevertheless, the District classified Clich as
noncurricular under the Framework. Without directing the Court to any evidence, the District
asserted at the motion hearing that the point is moot because Clich no longer exists. In any
case, the District asserted that the classifications of Clich as noncurricular and of traditional
high school sports teams as curricular are permissible because the District (and high school
leagues) sanction traditional sports teams. The Districts argument is circularthe District
deems certain student groups curricular because it sanctions them, but the District decides which
groups to sanction. This type of decision making is exactly what the Equal Access Act is meant
to prohibit. See Mergens, 496 U.S. at 244-45.
4 In its opposition memorandum, the District states: The School District does not contend
that participation on an athletic team alone may result in full academic credit.
5 At the motion hearing, the District also argued that Cheerleading and Synchronized
Swimming directly relate to MGSHs curriculum because participation in the groups is required
for a particular course, namely, Life Fitness. This argument has no merit. First, in its opposition
8
The Court turns next to the Spirit Council. The Spirit Council is part of MGSHs student
government. A schools student government would generally relate directly to the curriculum
to the extent that it addresses concerns, solicits opinions, and formulates proposals pertaining to
the body of courses offered by the school. Mergens, 496 U.S. at 240; see Straights & Gays for
Equal., 471 F.3d at 911 ([A] student government organization is directly related to the
curriculum if it addresses matters relating to the body of courses offered by the school. ). The
Spirit Council is responsible for planning activities such as Homecoming, Snow Daze, Spring
Fling and other events that foster a sense of positive school spirit and pride. The subject matter
of the Spirit Council does not concern MGSHs body of courses as a whole. No course requires
participation in the Spirit Council, and participation does not result in academic credit. The
District argues generally that the subject matter of MGSHs student government is taught in the
schools Political Science course. According to the affidavit of Vicky Swedenburg, a
Curriculum Specialist in the District, topics addressed in Political Science include the
Constitution, Federalism, Separation of Powers and Checks and Balances, Political Parties and
Interest Groups, Elections, Citizenship and Voting, Issues of Political Efficacy . . . the Executive
Branch, the Legislative Branch . . . and State and Local Government. Planning school dances
and events is not taught in Political Science; there is no evidence that the subject matter of the
memorandum, the District expressly disclaims the argument: [T]he School District does not
contend that participation on an athletic team [Cheerleading and Synchronized Swimming] is
required for any particular course at MGSH. Second, Wendy Loberg, MGSHs principal,
testified that no course at MGSH requires participation in Cheerleading and Synchronized
Swimming. Indeed, MGSH does not have a pool. As already noted, Life Fitness permits a
student to engage in any activity that improves or maintains a students fitness level to
implement the physical fitness plan. District-sponsored team activities are not given special
consideration toward the Life Fitness plan.
9
Spirit Council is actually taught or will soon be taught in a regularly offered course at MGSH. 6
Accordingly, the Court concludes that the District has not satisfied its burden of establishing that
the Spirit Council directly relates to MGSHs curriculum.
Finally, the Court considers Black Achievers. Black Achievers is a student group that
provides support to African American students with integration into MGSH and leadership skills
training. The District contends that the group directly relates to MGSHs curriculum because the
groups subject matter is taught in two courses, Foundations and Positive Leadership. According
to Lobergs affidavit, topics addressed in Foundations include how to be successful in school,
team building/integration activities and leadership. Positive Leadership is designed to enable
students to develop an awareness of their own leadership potential. Topics addressed include
planning and organizing, communications skills and techniques, positive relationship building,
problem solving and decision making. Thus, neither Foundations nor Positive Leadership
actually teaches integration and leadership skills with respect to African American students.7 Cf.
Mergens, 496 U.S. at 244-45 (rejecting contention that curriculum related means anything
remotely related to abstract educational goals and concluding that student group devoted to
scuba diving was noncurriculum related notwithstanding physical education classes that taught
6 The Court notes that the one-to-one relationship demanded by the District between the
subject matter of SAGE and MGSHs curriculumthe District asserted at the motion hearing
that SAGE has provided no materials to the Court that say that theres a subject taught at Maple
Grove that actually encourages acceptance of gaysis not demanded of other groups such as
the Spirit Council.
7 Again, the Court notes that the one-to-one relationship between SAGE and MGSHs
curriculum demanded by the Districtthe District states in its opposition memorandum that
SAGE has not shown that the subject matter of tolerance and respect relevant to [gay, lesbian,
bisexual, transgender, and questioning] individuals is actually taught in any courseis not
required of other student groups such as Black Achievers.
10
swimming). Accordingly, the Court concludes that the District has not satisfied its burden of
demonstrating that the Black Achievers directly relates to MGSHs curriculum.
A plaintiff seeking a permanent injunction must demonstrate: (1) that it has suffered an
irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate
to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff
and defendant, a remedy in equity is warranted; and (4) that the public interest would not be
disserved by a permanent injunction. eBay Inc. v. MercExchange, L.L.C., 126 S. Ct. 1837, 1839
(2006); see Forest Park II v. Hadley, 336 F.3d 724, 731 (8th Cir. 2003). Here, the record,
viewed in the light most favorable to the District, reveals that several student groups at MGSH
deemed curricular under the Framework are actually noncurriculum related student groups.
By denying SAGE equal access to the same avenues of communication afforded other
noncurriculum related student groups, the District violates the Equal Access Act. See Straights
& Gays for Equal., 471 F.3d at 912. This violation irreparably harms SAGE, and remedies at
law are inadequate to compensate for that injury. See id. at 913. Against this harm, the Court
balances the hardship imposed on the District by an injunction. The demands placed on the
District by an injunction are slight. SAGE seeks only the same access to school facilities
accorded other student groups improperly labeled curricular. The balance of harms favors
SAGE. The Court recognizes that public school administrators must be given a great deal of
autonomy in deciding how best to run their schools: [T]he education of the Nations youth is
primarily the responsibility of parents, teachers, and state and local school officials, and not of
federal judges. Hsu v. Roslyn Union Free Sch. Dist. No. 3, 85 F.3d 839, 872 (2d Cir. 1996)
(quoting Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988)). Nevertheless, the
Equal Access Act is a definite, though measured, interference in these purely local decisions.
11
Id. Enforcement of the Act serves the public interest. Accordingly, the Court grants SAGE a
permanent injunction that accords SAGE the same access for meetings, avenues of
communication, and other miscellaneous rights afforded to MGSHs curricular groups.8
III. CONCLUSION
Based on the files, records, and proceedings herein, and for the reasons stated above, IT
IS ORDERED THAT:
1. SAGEs Motion for Partial Summary Judgment [Docket No. 203] is
GRANTED.
2. The District, its officers, agents, servants, employees, attorneys, and those
persons in active concert or participation with the District who receive
actual notice of this order by personal service or otherwise shall grant
SAGE the same access for meetings, avenues of communication, and other
miscellaneous rights afforded to MGSH curricular groups.
3. This injunction supersedes the preliminary injunction [Docket No. 82].
Dated: September 25, 2007
s/ Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge
8 Having granted SAGE a permanent injunction pursuant to the Equal Access Act, the
Court declines to consider whether the First Amendment compels the same result. See Mergens,
496 U.S. at 247; New York City Transit Auth. v. Beazer, 440 U.S. 568, 582 (1979); Prince v.
Jacoby, 303 F.3d 1074, 1090 (9th Cir. 2002).
 

 
 
 

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