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HSU v. ROSLYN UNION FREE SCH. DIST. NO. 3

February 21, 1995

EMILY HSU, by and through her next friend, DR. CHIN-CHING HSU, TIMOTHY HSU, by and through his next friend, DR. CHIN-CHING HSU, Plaintiffs, against ROSLYN UNION FREE SCHOOL DISTRICT NO. 3, et al., Defendants.


The opinion of the court was delivered by: LEONARD D. WEXLER

 WEXLER, District Judge

 Plaintiffs Emily Hsu and Timothy Hsu, students at Roslyn High School, through their parent and guardian Dr. Chin-Ching Hsu, bring this action against defendants Roslyn Union Free School District No. 3 (the "School District"), the President, Vice-President and the other members of the School District's Board of Education (the "School Board") in their official capacities, the Superintendent and Assistant Superintendent of the School District in their official capacities, and the present and former Principals of Roslyn High School in their official capacities, for injunctive, declaratory, and monetary relief challenging enforcement of defendants' policy prohibiting discrimination on the basis of religion as applied to a student bible club organized by plaintiffs. Plaintiffs allege that the School District's nondiscrimination policy, as applied to the bible club in the form of an "open officership" requirement, violates plaintiffs' rights under the Equal Access Act ("EAA" or the "Act"), 20 U.S.C. § 4071 et seq., the First and Fourteenth Amendments of the United States Constitution, and the recently-enacted Religious Freedom Restoration Act of 1993 ("RFRA"), 107 Stat. 1488, 42 U.S.C. §§ 2000bb et seq., as well as the New York State Constitution. Presently before the Court are plaintiffs' motion for a preliminary injunction to prevent defendants from enforcing the nondiscrimination policy, and defendants' cross-motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

 The facts as alleged in plaintiffs' 38-page amended complaint and plaintiffs' affidavits are summarized as follows. When this action was commenced, plaintiffs Emily Hsu and Timothy Hsu were students of Roslyn High School, a public high school for grades nine through twelve located in Roslyn, New York, within the defendant School District. Amended Complaint PP 7, 9, 21. Emily Hsu presumably has graduated since that time *fn1" ; Timothy Hsu has not. The school is controlled and operated under the authority of the School Board, and receives federal financial assistance. Id. P 21. Defendants permit student groups to voluntarily meet on school premises during non-instructional time. Id. PP 1, 22. Plaintiffs identify nearly three dozen clubs meeting on the school's premises with recognition by defendants, including, for example, the Chess Club, Art Club, Math Club, Mock Trial, Key Club, Fashion Club, Peer Counseling, Model Congress, and Jazz Band. Id. P 22. While many of these clubs are curriculum related, some are noncurriculum related. Id. Each of these recognized clubs is granted certain rights and privileges, including access to meeting areas and the right to advertise. Id. P 1.

 Sometime in or before September 1993, plaintiffs undertook to form a new club, a Christian bible club, at Roslyn High School. Id. P 24. In September 1993, Emily Hsu met with defendant Mark Weyne ("Weyne"), the principal of Roslyn High School at that time, and requested permission to use the school facilities for the proposed bible club. Id. P 25; Affidavit of Emily Hsu in Support of Amended Complaint and Motion for Preliminary Injunction ("Emily Hsu Aff.") P 9. Weyne informed Emily Hsu that he needed to research the question and would contact her with a response. Amended Complaint P 25. By November 1993, Weyne still had not contacted Emily Hsu concerning the proposed bible club. Id. PP 25-26; Emily Hsu Aff. P 10. Sometime in mid-November 1993, Emily Hsu and Jane Shin ("Shin"), another student interested in forming the bible club, met with Weyne and defendant Marilyn Silverman ("Silverman"), Assistant Superintendent of the School District. Amended Complaint P 28; Emily Hsu Aff. P 11. At that meeting, defendants informed Emily Hsu and Shin that they were checking the legality of the proposed student bible club and would contact them with their decision. Amended Complaint P 28; Emily Hsu Aff. P 11. Later in November, Emily Hsu and Shin were informed (although plaintiffs do not indicated by whom) that the School Board would discuss the proposal for a student bible club at a December 2, 1993 meeting. Amended Complaint P 29; Emily Hsu Aff. P 12.

 At the December 2, 1993 School Board meeting, Silverman stated that the School District was required to grant the bible club access, even though it did not want the club to meet. Emily Hsu Aff. P 15. Silverman also stated that six provisions were required for the club's approval, the first of which was that "membership must be open to all Roslyn students." Id.2 During the meeting, one of the female board members suggested that the School District "merely refuse federal financial assistance" to avoid the requirements of the EAA. Id. P 16. After a public discussion was held, the bible club's proposal was tabled. Amended Complaint PP 31-33; Emily Hsu Aff. PP 14-18.

 On January 12, 1994, Emily Hsu submitted the bible club's constitution to Silverman. Amended Complaint P 40 & Ex. C; Emily Hsu Aff. P 22. *fn3" On January 21, 1994, Silverman informed Emily Hsu that the School Board "had a problem with the Christian Bible club's constitution." Amended Complaint P 40 & Ex. C; Emily Hsu Aff. P 23. Specifically, Silverman indicated that "there were two sections of the constitution which the [School Board] wanted changed": Article I, Section I and Article V, Section II. Amended Complaint P 40; Emily Hsu Aff. P 23. In this respect, Silverman stated that the School Board wanted the word "Christian" changed to "people" in the constitution's definition of "Christian fellowship," Article I, Section I; this definition provided that "Christian fellowship is when Christians gather to praise God . . . ." Amended Complaint P 42; Emily Hsu Aff. P 24. Silverman explained that the School Board "felt that the word 'Christian' was too exclusive." Amended Complaint P 42; Emily Hsu Aff. P 24. Emily Hsu eventually made this change to the club's constitution. However, plaintiffs claim that "Emily Hsu, under coercion, yielded to the requirement and made this change as a good faith effort to resolve the conflict with the [School Board] and end the chilling of her civil rights." Amended Complaint P 42; Emily Hsu Aff. P 24. The second section the School Board wanted changed was Article V, Section II, which provided that "officers must be professed Christians either through baptism or confirmation." Silverman explained that the School Board wanted this section changed so that "officers merely were required to be members of the Christian Bible club with the right to vote." Amended Complaint P 44; Emily Hsu Aff. P 25. Plaintiffs claim that in response to this request, "again, pressured by government coercion," Emily Hsu and Shin changed the club's constitution to read: "All members eligible to vote will also be eligible to run for offices. Accepting Jesus Christ as savior is a requirement for all officers." Amended Complaint P 46; Emily Hsu Aff. P 26.

 On or about January 26, 1994, Emily Hsu and Shin met with Silverman and defendant Frank Tassone ("Tassone"), Superintendent of the School District. Amended Complaint P 47; Emily Hsu Aff. P 27. Silverman and Tassone again requested that before consideration and approval of the Christian bible club, Emily Hsu and Shin remove the requirement from the club's constitution that officers must be Christians. Amended Complaint P 47; Emily Hsu Aff. P 27. Emily Hsu and Shin refused to comply with this request, "because this act would violate their sincerely-held religious beliefs that all club officers should be Christians." Amended Complaint P 47; Emily Hsu Aff. P 27. Silverman and Tassone stated that the School Board would not approve the constitution with this requirement, and told Emily Hsu and Shin to submit a new constitution for the club. Amended Complaint P 49; Emily Hsu Aff. P 27.

 Thereafter, on or about January 31, 1994, Emily Hsu submitted the bible club's constitution, without further revision, to Silverman, who refused to submit the constitution to the School Board for its approval. Amended Complaint P 50; Emily Hsu Aff. P 28. On February 14, 1994, after Emily Hsu "determined that the Christian Bible club would not be permitted to meet," Amended Complaint P 51; Emily Hsu Aff. P 30, plaintiffs commenced this action and requested a preliminary injunction enjoining defendants from denying the bible club access to the school's facilities. Subsequently, on or about March 10, 1994, before any hearing on the preliminary injunction motion, the School Board passed a resolution recognizing the formation of, and granting access to, the bible club (the "March 10 Resolution"). Amended Complaint P 52; Emily Hsu Aff. P 31. *fn4"

 On the date scheduled for argument of the preliminary injunction motion, plaintiffs' counsel indicated at a conference before the hearing that plaintiffs intended to file an amended complaint challenging the condition in the first enumerated paragraph of the March 10 Resolution, which provides:

 
Membership in the Club shall be limited to Roslyn High School students, and no student shall be discriminated against or excluded from participating in or having access to the Club, including without limitation entitlement to be an officer of the Club, on the basis of creed or religion.

 See Appendix B (emphasis added). Plaintiffs also indicated their intent to renew their motion for a preliminary injunction upon filing their amended complaint. The parties thereupon agreed to a filing date for the amended complaint and a briefing schedule for plaintiffs' preliminary injunction motion.

 Defendants maintain that the above paragraph of the March 10 Resolution and the earlier changes to the bible club's constitution requested by school officials were required by the School District's nondiscrimination policy embodied in two policies previously enacted by the School Board: (1) Policy 0100, entitled "Equal Opportunity"; and (2) Policy 5020, entitled "Equal Educational Opportunity." The Equal Opportunity policy provides:

 
The [School] Board, its officers and employees will not discriminate against any student . . . on the basis of race, color, national origin, creed or religion, marital status, sex, age or handicapping condition.
 
This policy of nondiscrimination includes: access by students to . student activities . . . .

 Affidavit of Frank Tassone ("Tassone Aff.") Exh. C. The Equal Educational Opportunities policy provides:

 
The [School] District shall provide every student with equal educational opportunities regardless of race, color, creed, sex, national origin, religion, age, marital status, or disability.
 
No student will be excluded on such basis from participating in or having access to any . . . extracurricular activities or other school resources.

 Id. According to defendants, the School District's nondiscrimination policy pre-dated plaintiffs' request for recognition of the bible club and has been imposed on all student clubs. Id. PP 15, 30.

 Plaintiffs vigorously object to the School District's refusal to exempt the bible club from the nondiscrimination policy as to eligibility to run for office. Plaintiffs contend that each officer of the club "carries a significant spiritual responsibility and import." Amended Complaint P 53; Emily Hsu Aff. P 32; Affidavit of Timothy Hsu in Support of Amended Complaint and Motion for Preliminary Injunction ("Timothy Hsu Aff."), P 10. To this end, plaintiffs detail the activities to be performed by the officers of the club, namely, the President, Vice-President, Secretary, Music Coordinator and Activities Coordinator. Timothy Hsu Aff. PP 11-15; Amended Complaint PP 54-58. Among other activities, the President is responsible for the "overall spiritual direction and oversight of the Bible club" and "the spiritual content of the regular weekly meetings." Timothy Hsu Aff. P 11(A), (B); Amended Complaint P 54(A), (B). The Vice-President is required to assist the President in the performance of the President's duties and, in the President's absence, to perform the presidential functions. Timothy Hsu Aff. P 12(A), (B); Amended Complaint P 55(A), (B). Similarly, the Secretary, in the President's and Vice-President's absences, is required to perform the presidential functions. Timothy Hsu Aff. P 13(B); Amended Complaint P 56(B). The Music Coordinator is responsible for "the selection of appropriate praise and worship songs to be used at the weekly meeting" and for "leading the singing and worship of the Lord by 'exhalting the Lord Jesus Christ and creating a sense and spirit of unity among those singing.'" Timothy Hsu Aff. P 14(A), (B); Amended Complaint P 57(A), (B). Lastly, the Activities Coordinator is responsible for planning and oversight of activities and "determining which activities would be appropriate in which to participate, e.g., a canned food drive, and those activities in which participation would offend Christian sensibilities, e.g., condom distribution." Timothy Hsu Aff. P 15(A), (B); Amended Complaint P 58(A), (B). In addition to their other activities, each officer is required to (1) "be prepared . . . to be called upon at any time to open or close a meeting with prayer . . . or to lead a Bible study"; (2) "be prepared . . . to serve as a spokesperson for the Bible club in relating the Christian perspective on any particular issue"; and (3) "be able to give testimony to the life-changing presence of Jesus Christ in his/her life and relate that experience in terms of on-going application to the lives of others." Timothy Hsu Aff. PP 11(C), (D) and (E); 12(C), (D) and (E); 13(C), (D) and (E); 14(C), (D) and (E); and 15(C), (D) and (E); Amended Complaint PP 54(C), (D) and (E); 55(C), (D) and (E); 56(C), (D) and (E); 57(C), (D) and (E); and 58(C), (D) and (E). In short, the roles of these officers, according to plaintiffs, are "to not only participate but lead the club in [its] activities." Plaintiffs' Memorandum in Support of Amended Complaint and Motion for Preliminary Injunction ("Pls. Mem."), at 2-3 (emphasis in original).

 Based on the roles of the bible club's officers, plaintiffs argue that the condition prohibiting the club from requiring that officers be "professed Christians" "would influence the form and content of both the club itself, the day to day activities of its members and result in a violation of Plaintiffs' sincerely-held religious beliefs that all club officers should be Christians." Amended Complaint P 53. As a result, plaintiffs claim the School District's "permission for the formation of the Christian Bible Club, contingent upon non-Christians being allowed as officers in the Club," Pls. Mem. at 4, violates the EAA, the First and Fourteenth Amendments, and the RFRA.

 Following oral argument on the preliminary injunction motion, the Court reserved decision. This opinion follows.

 II. DISCUSSION

 A. Preliminary Injunction

 In the Second Circuit, to obtain a preliminary injunction the moving party must show: "'(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of the hardships tipping decidedly toward the party requesting the preliminary relief.'" Deeper Life Christian Fellowship, Inc. v. Board of Educ., 852 F.2d 676, 679 (2d Cir. 1988) (quoting Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979) (per curiam)).

 B. Irreparable Harm

 Defendants contend that plaintiffs will not suffer irreparable harm because the club has been granted access and is not being deprived of their First Amendment rights, and because the club has refused to comply with the condition as to officership and has held no meeting. Defendants' Memorandum of Law in Opposition to Plaintiffs' Motion for a Preliminary Injunction and in Support of Defendants' Cross-Motion for Judgment on the Pleadings ("Defs. Mem."), at 8. Defendants misconstrue plaintiffs' contention as to irreparable harm. Essentially, plaintiffs claim that defendants have impermissibly conditioned their access to the school forum in violation of, inter alia, their First Amendment rights. If, as plaintiffs contend, they are being deprived of their First Amendment rights by defendants' nondiscrimination policy, they have and will continue to sustain irreparable harm. As the Supreme Court has stated: "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976); see Deeper Life, 852 F.2d at 679. Accordingly, this Court finds that plaintiffs have demonstrated that they will suffer irreparable harm.

 Plaintiffs claim that they are entitled to preliminary injunctive relief because the School District, by imposing its nondiscrimination policy on the bible club, *fn5" has violated the EAA, the First and Fourteenth Amendments, and the RFRA. *fn6" The Court must analyze each of these claims to determine whether plaintiffs have satisfied the second prong of the preliminary injunction standard. Neither party cites any case on point, and the Court has found none.

 1. Equal Access Act Claim

 The EAA requires public secondary schools receiving federal financial assistance to grant equal access to student groups if the school maintains a "limited open forum," i.e., if it permits "one or more noncurriculum related student groups to meet on school premises during noninstructional time." 20 U.S.C. § 4071(a) and (b). *fn7" In Board of Education of Westside Community Schools v. Mergens, 496 U.S. 226, 236, 110 L. Ed. 2d 191, 110 S. Ct. 2356 (1990), the Supreme Court held that where the Act's obligations are triggered, 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." The Court further held that the Act, on its face and as applied to allow access to a student religious group, does not violate the Establishment Clause. Id. at 253. *fn8" The Act, the Court noted, was "intended to address perceived widespread discrimination against religious speech in public schools." Id. at 239. To this end, the "Act's central command [is] that schools not discriminate against religious speech." See Garnett v. Renton Sch. Dist. No. 403, 987 F.2d 641, 645 (9th Cir.), cert. denied, 126 L. Ed. 2d 41, 114 S. Ct. 72 (1993).

 The issue is not whether the EAA requires the School District to open its forum to the bible club, for the School District has already agreed to permit the bible club to meet. Nor is the issue, contrary to plaintiffs' arguments, whether the EAA prohibits the School District from determining the leaders, i.e., the "officers," of the student-initiated and student-led bible club, for the School District does not seek to do that. Rather, the issue is whether the EAA requires the School District to exempt a student-initiated and student-led religious club from its nondiscrimination policy, purportedly applied to all student clubs, and permit the club to exclude students from running for office upon the basis of religious beliefs, although the club is open to all students on a voluntary basis. *fn9"

  The crux of plaintiffs' EAA claim is that the March 10 Resolution's "open officership" requirement, see Pls. Mem. at 11-12, violates § 4071(d)(1) of the EAA, which provides: "Nothing in this subchapter shall be construed to authorize the United States or any State or political subdivision thereof--(1) to influence the form or content of any prayer or other religious activity." 20 U.S.C. § 4071(d)(1). Plaintiffs argue that the "plain language of this statute prohibits the School District from attempting to influence the Bible Club's structure. " Pls. Mem. at 8 (emphasis added). In this respect, plaintiffs argue that the "manifest meaning of the word 'form' is: 'the shape and structure of something . . . .'" Id. at 8 (quoting Webster's Third New Int'l Dictionary 892 (1993)). Thus, plaintiffs reason, the School District's policy requiring "open officership without reference to religion and creed" is an attempt to influence the "structure" of the club, which translates into an attempt to influence the "form" of the club's activity. Id. Based on the same reasoning, plaintiffs argue that the School District's policy also violates § 4071(c)(1) of the Act. This subsection provides that a school offers a "fair opportunity" to students who wish to conduct a meeting within its limited open forum if the school provides that the "meeting is voluntary and student initiated." 20 U.S.C. § 4071(c)(1). Plaintiffs argue that the School District cannot comply with this "fair opportunity" criterion because the "Bible Club structural requirements are neither 'voluntary,' nor 'student initiated.' Once the Roslyn School District became intimately involved in structuring the workings of the Club, it crossed the impassable boundaries of the [Act]." Pls. Mem. at 9. According to plaintiffs, the School District, by its actions, became impermissibly involved in the "administration of religious activities" in violation of the Act. Id. at 9-10 (citing Mergens, 496 U.S. at 253). In addition, plaintiffs argue that the School District's "requirement was created by the School Board just to impede the formation of the Bible Club." Id. at 11. For these reasons, plaintiffs argue, the School District may not impose an "open officership" policy upon the bible club or condition access thereon.

 Defendants maintain that application of the School District's nondiscrimination policy to the bible club does not contravene the Act, and that the School District has satisfied its obligations under the Act by affording the bible club access to its facilities on the same basis and subject to the same terms and conditions as all other noncurriculum-related student clubs. *fn10" Defendants assert that the School District's nondiscrimination policy pre-dated plaintiffs' request for recognition of the bible club, and that the policy has been imposed on all student clubs. Tassone Aff. PP 15, 30. Defendants argue that the Act "does not require that the [School] District afford a religion club 'privileges' which are not available to other non-curriculum clubs." Defs. Mem. at 14-15. Rather, according to defendants, the club must

 
be open, in all respects, to all members of the student body without regard to their religious beliefs. Students may openly express their religious beliefs at club meetings--even as part of an election campaign. Requiring a student, however, to subscribe to a particular religious belief as a condition of eligibility to hold office is not permitted.

 Tassone Aff. P 23 (emphasis in original). Defendants rely principally on § 4071(d)(5) and (7), which provide that the Act shall not be construed to authorize a school district "to sanction meetings that are otherwise unlawful," 20 U.S.C. § 4071(d)(5), or "to abridge the constitutional rights of any person," id. § 4071(d)(7). By allowing the bible club and its members to discriminate against other students on the basis of religion, defendants maintain that the School District would be sanctioning abridgement of excluded students' constitutional rights (i.e., denial of free exercise of religion, association and speech rights of those students excluded from officership on the basis of religious speech and beliefs), and sanctioning meetings unlawful under the Fourteenth Amendment of the United States Constitution, Article 1, § 11 of the New York State Constitution, *fn11" and § 44-a of the New York Civil Rights Law. *fn12" See Defs. Mem. at 15, 17-19. *fn13" According to defendants, the School District, by requiring the bible club to abide by the nondiscrimination policy, was simply exercising authority to "protect the well-being of the student body and to advance the educational activities and mission of the District," authority expressly recognized by § 4071(f) of the Act. Id. at 15-16. Section 4071(f) provides: "Nothing in [the Act] shall be construed to limit the authority of the school . . . to maintain order and discipline on school premises [and] to protect the well-being of students . . . ." 20 U.S.C. § 4071(f).

 The Court begins with the plain language of the statute. See Mergens, 496 U.S. at 237. Section 4071(a) prohibits the School District from denying the bible club "equal access." Equal access provides a student bible club the right "to meet on school property on the same basis as other noncurriculum related clubs." Garnett, 987 F.2d at 646 (emphasis added). The provisions of subsection (d) designate rules of construction applicable to the Act, not exceptions to it. See id. at 644-45. "As such, [subsection (d)] instructs the court how to interpret the Act's central command that schools not discriminate against religious speech." Id. at 645. Essentially, subsection (d) instructs that school officials not unconstitutionally apply the Act. Id.

 In Mergens, the Supreme Court found that the EAA "reflected at least some consensus of a broad legislative purpose." 496 U.S. at 239. A broad reading, the Court determined, "would be consistent with the views of those who sought to end discrimination by allowing students to meet and discuss religion before and after classes." Id. Thus, the Supreme Court determined that the entire Act "must be read to effectuate a broad Congressional purpose." Garnett, 987 F.2d at 645. The Act's legislative history, however, provides no ...


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