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 East High School PRISM Club v. Cynthia L. Seidel

 RICHARD A. VAN WAGONER (A4690)
SNOW, CHRISTENSEN & MARTINEAU
10 Exchange Place, Eleventh Floor
Post Office Box 45000
Salt Lake City, UT 84145-5000
Telephone: (801) 521-9000

STEPHEN C. CLARK (A4551)
ACLU OF UTAH FOUNDATION, INC.
355 North 300 West, Suite 1
Salt Lake City, Utah 84103
Telephone: (801) 521-9862

Attorneys for Plaintiffs

(Additional counsel for Plaintiffs listed below.)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Case No. 2:00CV-0311K

Judge Tena Campbell

EAST HIGH SCHOOL PRISM CLUB, an unincorporated association; EAST HIGH SCHOOL RAINBOW CLUB, an unincorporated association; JESSICA R. COHEN, a minor, by and through mother and next friend, JUDY COHEN; and MARGARET HINCKLEY, a minor, by and through her mother and next friend, JUDY HINCKLEY, Plaintiffs,

vs.

CYNTHIA L. SEIDEL, Assistant Superintendent of Salt Lake City School District, in her official capacity, Defendant.

(Additional counsel for Plaintiffs)

JON W. DAVIDSON
Lambda Legal Defense and Education Fund, Inc.
6030 Wilshire Blvd., Suite 200
Los Angeles, California 90036
(323) 937-2728, ext. 228

DAVID S. BUCKEL
DONI GEWIRTZMAN
Lambda Legal Defense and Education Fund, Inc.
120 Wall Street, Suite 1500
New York, New York 10005
(212) 809-8585, ext. 212

KATHRYN D. KENDELL (5398)
SHANNON MINTER
National Center for Lesbian Rights
870 Market Street, Suite 570
San Francisco, California 94102
(415) 392-6257

Plaintiffs East High School PRISM Club (the “PRISM Club”), Jessica R. Cohen, by and through her mother and next friend Judy Cohen, and Margaret Hinckley, by and through her mother and next friend Judy Hinckley, respectfully submit this Memorandum in Support of their Motion for Preliminary Injunction.

I. INTRODUCTION AND STATEMENT OF ISSUES

The Salt Lake City School District maintains a limited “designated public forum” for student groups that want to have discussions and activities related to subjects taught at high schools in the District, including East High School. It has represented to this Court in no uncertain terms, and based on that representation this Court has held, that “as a matter of District policy, gay-positive viewpoints as to matters relevant to the school curriculum may be freely expressed in the existing forum at East and West high schools.” East High Gay/Straight Alliance v. Bd. of Educ., Civ. No. 2:98-CV-193J, Order and Judgment of Dismissal dated November 30, 1999, p. 5.

Defendant Cynthia L. Seidel is the District official charged with regulating access to the forum and, in so doing, ensuring compliance with the District’s policy against suppression of gay-positive viewpoints. According to Ms. Seidel, access to the forum is granted to student groups that demonstrate, on the face of a standard application, that the group’s subject matter is taught in the school curriculum and that the group’s planned activities will provide an “extension and reinforcement, application, and practice of curricular content.” Applying those standards, Ms. Seidel has approved dozens of student groups.

Plaintiffs here represent one such group. They have prepared and submitted an application stating that they want to extend and enhance their study of subjects taught in East High School courses – U.S. History, American Government and Law, and Sociology – through discussions and activities of what they have named the PRISM Club. Their discussions and activities would highlight how the curricular subjects affect and are affected by gay and lesbian people. Plaintiffs seek only the same access as their peers in other curriculum-related student groups, who have been and are able to form curriculum-related clubs that reflect their own viewpoints and interests.

Notwithstanding the perfect fit between the stated requirements for access to the forum and plaintiffs’ straightforward application, however, Ms. Seidel refuses to allow the PRISM Club to meet. That refusal is based on a misapplication of the standards that Ms. Seidel herself has enunciated and applied on dozens of previous occasions, and is inconsistent with the District’s policy disavowing censorship of gay-positive viewpoints. Unless Ms. Seidel is enjoined from prohibiting plaintiffs from meeting through her misapplication of the standards for curriculum-related student groups, plaintiffs will continue to suffer irreparable injury to their First Amendment rights. Accordingly, plaintiffs seek this Court’s Order granting them preliminary injunctive relief enjoining Ms. Seidel from prohibiting the PRISM Club from meeting in the forum, so that the PRISM Club can meet during the pendency of this case, on an equal footing with the other curriculum-related student groups, consistent with the statements in its application. [1]

II. STATEMENT OF FACTS

1. Plaintiff PRISM Club is an unincorporated association of students enrolled at East High School, a public secondary school located within Salt Lake City School District. Plaintiff Jessica Cohen (“Cohen”) is a minor and sues by and through her mother and next friend, Judy Cohen. Cohen is an 11th grade student at East High School and is a member of the PRISM Club. Plaintiff Margaret Hinckley (“Hinckley”) is a minor and sues by and through her mother and next friend, Judy Hinckley. Hinckley also is an 11th grade student at East High School and a member of the PRISM Club. Complaint, ¶¶ 4, 6, 7; Affidavit of Jessica R. Cohen in Support of Motion for Preliminary Injunction (“Cohen Aff.”), ¶¶ 1-2.

2. Defendant Cynthia L. Seidel (“Ms. Seidel”) is Assistant Superintendent of the Salt Lake City School District (the “District”). Ms. Seidel is the person authorized by the District to make final decisions about which student groups are allowed to meet at high schools in the District. Complaint, ¶ 8; Declaration of Stephen C. Clark (“Clark Decl.”), ¶ 2, Exhibit A (Excerpts of Deposition of Cynthia Seidel (“Seidel Dep.”) in East High Gay/Straight Alliance v. Board of Education of Salt Lake City School District, Civ. No. 2:98-CV-193J), pp. 12-14.

3. In February 1996, the District adopted Policy IGDA. With that policy, the District stated that it “desires to promote and advance curriculum-related student clubs.” In subsequently announcing the student groups that had been approved under the new policy, the District stated: “Students in each of the high schools will continue to be allowed to charter additional curriculum-related clubs that fall within” the policy. The District expects Ms. Seidel to apply the standards for curriculum-relatedness the same way to all club applications. See Clark Decl., ¶ 3, Exhibit B (Policy IGDA); id. ¶ 4, Exhibit C (District Press Release dated April 18, 1996); id. ¶ 5, Exhibit D (Excerpts of Deposition of Darline P. Robles), pp. 76-77.

4. As implemented by Ms. Seidel, Policy IGDA requires that faculty advisors for student groups wishing to meet as a curriculum-related student group timely submit an application. The application must indicate whether the group claims that its subject matter is “actually taught . . . in a regular course.” Ms. Seidel also suggests that the application include a “charter or other written description of the name and of the student club,” a copy of the “disclosure statement(s) for the courses that provide the curricular basis for the student club,” and a “written outline of the club activities planned. . . .” According to Ms. Seidel, to determine whether the subject matter of a group is the same as the subject matter of a course, she looks “at the courses that are listed on the application,” the “course descriptions that are associated with those course titles,” and the “disclosure statements attached to the application.” Ms. Seidel will approve the club if on the face of the documentation submitted it appears that the subject matter of the group is taught in a course at the high school and if the group’s activities will provide an “extension and reinforcement, application, and practice of curricular content,” i.e., if it “takes the subject matter [taught in a class at the high school], gives the students a chance to review it, to see it in real life, to practice what they’ve learned in a hands-on type of setting, or to see it in the real world, those types of connections.” See Clark Decl., ¶ 6, Exhibit E (Memorandum from Cindi Seidel dated August 27, 1998); id., Exhibit A (Seidel Dep.), pp. 31, 99-100.

5. Under Policy IGDA and the above practice, Ms. Seidel has reviewed a number of applications for groups representing a variety of subject matters and activities from each of the high schools in the District. Almost without exception, she has found those groups to be curriculum-related under the applicable standards, and has allowed them to meet in one or more of the school years since adoption of the policy. Id., pp. 72-73.

6. One of the groups Ms. Seidel approved in prior school years was called the “CHARABANC” Club. According to its original charter, the CHARABANC Club was initiated “in order to further study and explore aspects of social science,” represented in the acronym “CHARABANC” (Culture, History, Art, Religion, Anthropology, Biologism [sic], Archaeology and Native Civilizations). The students who initiated the club said they wanted to “view[] the sights and peoples of the new and old world through the windows available in Salt Lake City and surrounding areas.” See Clark Decl., ¶ 7, Exhibit F (CHARABANC Club Application).

7. Another group Ms. Seidel has approved is called the MESA Club. The MESA Club includes “historically and currently underserved minority groups and women students” who are enrolled in a special math class “designed to advance those students into an accelerated math track.” The club “serves as a student support group” and “allows students to associate with other students pursuing the same goals” and to engage in “after-school activities that are exciting, motivational, and support the students’ academic and career goals.” See Clark Decl., ¶ 8, Exhibit G (Excerpts from MESA Student Handbook).

8. Another group Ms. Seidel has approved is called “Odyssey of the Mind” at West High School. That group features “teamwork activities” that “involve divergent thinking, brainstorming, creativity, analysis, teamwork, all of the higher-level thinking skills” listed as course objectives for the American Studies, International Baccalaureate History and European History classes taught at West High School. Ms. Seidel concluded the club was “curriculum-related” because “the students in these courses are expected to think critically and to do almost like a social critique as part of the understanding of not just facts and history and dates but also how the historical events link together to create a culture.” See Clark Decl., Exhibit A (Seidel Dep.), pp. 101-04; see also id. ¶ 15, Exhibit N (Odyssey of the Mind Club Application).

9. Most recently, Ms. Seidel approved the application of a “Polynesian Club” to meet at East High School. The Polynesian Club claimed a relationship with the Tongan Language class taught at East High School. According to its application, the purpose of the club is to “provide academic services, support, cultural awareness plus enriching activities thus enhancing the students’ high school experience,” and to “allow the students to better understand the Polynesian community” through socials, guest speakers, a luau, demonstrations of ethnic arts and crafts, dances and other activities designed to “enrich and enhance what is taught in the class room.” East High Principal Bob Pliley endorsed the Polynesian Club application on October 1, 1999, and Ms. Seidel approved it on November 3, 1999. See Clark Decl., ¶ 9, Exhibit H (Polynesian Club Application).

10. In or about January 2000, a number of East High students, including plaintiffs Cohen and Hinckley, sought to form a curriculum-related student group, the PRISM Club. PRISM stands for “People Respecting Important Social Movements.” Centering on subjects taught in the American Government and Law, U.S. History and Sociology courses at East High School, the PRISM Club was to engage in discussions and activities that would expand and enhance students’ study and understanding of those subjects by viewing them from the perspective of gay and lesbian people. Cohen Aff., ¶¶ 3-4.

11. The U.S. History course comprises “a survey of U.S. History.” The American Government and Law course “includes a familiarization with the various institutions, groups, beliefs, and ideas that constitute the political environment in the United States.” The Sociology course includes the “study of human groups, the meaning of culture, cultural variations, cultural values and social control, this individual and his/her personality, psycho-social needs, collective behavior, social processes, communication, social class systems, social institutions (marriage, education, religion, economics, and government), the family and criminology.” See Clark Decl., ¶ 10, Exhibit I (Excerpts from 1999-2000 East High School Course Description Catalogue).

12. The U.S. History course disclosure document attached to the PRISM Club application states that students must, among other things, “recognize and evaluate the varied influences on American culture and society.” The Advanced Placement Government and Politics course requires, among other things, that students “show an understanding of issues involving civil rights and civil liberties.” The Sociology course requires that students “develop the ability to look at the social world around them more objectively, instead of viewing it as they want to see it or as others might want them to see it,” “experience a variety of reading materials containing a variety of views and opinions,” and “participate in group discussion and debate.” To achieve those course objectives, plaintiffs stated their intent to “use what is taught in those courses to analyze systems and processes” and to engage in “other political and cultural activities and experiences.” See Clark Decl., ¶ 11, Exhibit J (PRISM Club Application).

13. In their application on behalf of the PRISM Club, the students described the club’s subject matter as being “about American history, government, law and sociology.” The students said that they “want to talk about democracy, civil rights, equality, discrimination and diversity,” and that they are not interested in “advocating homosexuality, promoting a partisan platform, or discussing sexual behavior.” Instead, they want “to expand and enhance [the students’] study and understanding of American history and government, law and social institutions, which are topics covered in the U.S. History, American Government and Sociology courses currently taught here at East High School, and to gain hands-on experience in applying the concepts and skills taught in those courses.” The PRISM Club planned activities geared to extension and application of these subjects, “giving interested students an opportunity to enhance their knowledge of American history, government, law and social institutions and to gain a more concrete understanding of how they affect the real lives of gay and lesbian people.” Id.; see also Cohen Aff., ¶ 5.

14. The PRISM Club is open to all students attending East High School, regardless of their race, age, religion, gender, disability or sexual orientation. The PRISM Club has members who are heterosexual as well as members who are gay, lesbian or bisexual, members who are not certain of their sexual orientation and members who have not made their sexual orientation known to others. Cohen Aff., ¶ 6.

15. When plaintiffs timely submitted the application seeking recognition of the PRISM Club as a curriculum-related student group to Principal Pliley, he declined to endorse the application. Imposing a standard not previously identified as a District or school requirement for recognition as a curriculum-related student group, and not imposed by Pliley even a few months before when he approved the application of the Polynesian Club, Pliley stated as follows:

I am uncomfortable when any group asks that a public institution endorse a limited, specialized position or format. By my lights, our responsibility is to be inclusive, not exclusive. If the application would have said, “The club will serve as a prism . . . in terms of the impact, experience and contributions of all of the non-mainstream groups as they come to terms with their place in their respective and/or collective community,” I would be more inclined to affix my signature in support.
See Clark Decl., ¶ 12, Exhibit K (Letter from Bob Pliley dated 2/1/00)

16. Although Principal Pliley refused to endorse the PRISM Club application, he did forward it to Ms. Seidel, who considered the application without requiring Principal Pliley’s endorsement. Ms. Seidel nevertheless declined to approve the application of the PRISM Club as a curriculum-related student group, stating:

This letter responds to your application for The PRISM Club. According to your application, The PRISM stands for “People Recognizing Important Social Movements” and seeks a curriculum relationship with East High Schools [sic] history, government and sociology courses. However, the organizing subject matter of the club narrows to “the impact, experience, and contributions of gays and lesbians” in historical and current events, institutions and culture. This subject matter is not taught in the courses you cite. After careful review of your application, I am unable to approve this club as a curriculum-related club.

See Clark Decl., ¶ 13, Exhibit L (Letter from Cynthia L. Seidel dated 3/1/00).

17. The members of the PRISM Club, including plaintiffs Cohen and Hinckley, wish to begin immediately to express their viewpoint on the subjects they have identified, all of which are currently taught in the curriculum at East High School, in the PRISM Club. While the District may maintain that they are free to do so in existing student groups, plaintiffs wish to do so in the specific context of the PRISM Club because (1) there currently is no student group devoted to discussion of the curricular subjects plaintiffs wish to discuss, nor one that would examine those subjects from plaintiffs’ particular viewpoint; and (2) plaintiffs believe that the freedom of expressive association that generally allows groups of like-minded individuals freely to meet together to advance their shared views, subject only to reasonable, constitutional regulations applies fully in their school community and should be applied fairly and equally to them. Cohen Aff., ¶ 7.

18. Because Ms. Seidel has refused and continues to refuse to recognize such a club, plaintiffs cannot meet as the PRISM Club. Under East High School policy, if the PRISM Club were to meet without approval it would be “considered illegal and [would] be disbanded,” and the students could be suspended or placed on disciplinary probation for “willful disobedience towards school staff.” See Clark Decl., ¶ 14, Exhibit M (Excerpt of East High School Student Handbook).

19. Plaintiffs and the members of the PRISM Club do not want to violate any District or school policy. They are fully aware of and are committed to fulfilling their responsibility under District Policy JF to “exercise restraint and good taste in their expression, and to refrain from use of expression that is vulgar, profane, obscene or likely to incite violence on school property” in all meetings and activities of the PRISM Club. Cohen Aff., ¶ 8.

III. ARGUMENT

A. Standards for Issuing a Preliminary Injunction

To obtain a preliminary injunction, the movant must establish the following:
(1) substantial likelihood that the movant will eventually succeed on the merits;
(2) a showing that movant will suffer irreparable injury unless the injunction issues;
(3) proof that the threatened injury to the movant outweighs the potential damage to the opposing party; and
(4) a showing that the injunction will not be adverse to the public interest. Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir. 1980); Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 75 F. Supp. 2d 1290, 1291 (D. Utah 1999).

When the law controlling the case’s outcome favors the movant, courts deem the first factor the one that “requires the most detailed analysis,” and, especially in the free expression context, typically find the other factors easily met. See Elam Const., Inc. v. Regional Transp. Dist., 129 F.3d 1343, 1347 (10th Cir. 1997), cert. denied, 118 S. Ct. 1363 (1998) (holding that Supreme Court First Amendment law on campaign contributions favored movant and summarily concluding that the remaining factors constituting the balance of hardships tipped in its favor).

Moreover, if the movant presents convincing evidence on factors two, three and four, the first factor is redefined so that the movant only has to “[raise] questions going to the merits so serious, substantial, difficult and doubtful as to make them fair ground for litigation and thus for more deliberate investigation.” See Longsgreth v. Maynard, 961 F.2d 895, 903 (10th Cir. 1992), cert. denied sub nom. Mosier v. Reynolds, 510 U.S. 895 (1993) (reversing prior denial of preliminary relief because the balance of hardships tipped in the movants’ favor).

B. Plaintiffs’ Showing Under the Relevant Standards

1. Plaintiffs Have a High Likelihood of Success on the Merits.

a. The First Amendment requires a consistent application of the standards governing access to the forum for curriculum-related student groups at East High School.

The First Amendment requires that, once the government has opened a forum, it must apply the standards governing expression within that forum consistently, regardless of the speaker’s viewpoint. See Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 829 (1995) (once the government has opened a forum, it “must respect the lawful boundaries it has itself set”); AIDS Action Comm. of Mass. v. MBTA, 42 F.3d 1, 12 (1st Cir. 1994) (First Amendment violated when government engaged in “discrimination in the application of supposedly neutral standards” governing expression within the forum); Travis v. Oswego-Apalachin Sch. Dist., 927 F.2d 688, 692 (2d Cir. 1991) (“once [the government] allows expressive activities of a certain genre, it may not selectively deny access for other activities of that genre”); East Timor Action Network, Inc. v. City of New York, 71 F. Supp. 2d 334, 345-46 (S.D.N.Y. 1999) (finding government denial of application for politically-oriented street sign to violate First Amendment’s prohibition on denying access to limited public forum when activities of the same nature previously had been allowed within the forum).

In this case, the District has created and maintains a limited designated public forum at high schools in the District, including East High School. As the Tenth Circuit has explained:

The Supreme Court has identified three distinct categories of government property: (1) traditional public fora; (2) designated public fora; and (3) nonpublic fora. . . . The designated public forum, whether of limited or unlimited character, is one a state creates “by intentionally opening a non-traditional forum for public discourse.” In determining whether the government intended to create a designated public forum, we examine both its policy and practice. . . . “Although a State is not required to indefinitely retain the open character of the facility, as long as it does so it is bound by the same standards as apply in a traditional public forum.”

Hawkins v. City and County of Denver, 170 F.3d 1281, 1286 (10th Cir. 1999); see also Arkansas Educ. Television Comm’n v. Forbes, 523 U.S. 666, __, 118 S. Ct. 1633, 1641 (1998) (when government opens “properties for expressive use by the general public or by a particular class of speakers, [it] thereby creat[es] designated public fora”). [2]

The high schools in the District, including East High School, are open to a “particular class of speakers,” i.e., students who initiate “curriculum-related” student groups. Policy IGDA states that the District “desires to promote and advance curriculum-related student clubs.” See Clark Decl., Exhibit B. The District has also stated that this includes new clubs in addition to those existing at the time the policy was adopted: “Students in each of the high schools will continue to be allowed to charter additional curriculum-related clubs. . . .” See id., Exhibit C. Therefore, the District has created and maintains a limited “designated public forum” for student-initiated, curriculum-related student groups. It is that forum at East High School to which plaintiffs seek access on equal terms with other clubs without discrimination against the viewpoints they wish to express.

In prior, related litigation against Ms. Seidel and the District (but not involving the PRISM Club), the District argued that it can engage in viewpoint discrimination within that forum, so long as it acts “reasonably” in pursuit of legitimate pedagogical objectives, asserting that the forum features “school-sponsored” speech of the type discussed in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). This Court correctly rejected the District’s characterization of the speech at issue as “school-sponsored,” concluding it is unlikely that students, parents and members of the public would view such speech as “bearing the imprimatur of the school.” See Clark Decl., ¶ 16, Exhibit O (Memorandum Opinion and Order dated October 6, 1999), p. 48. More importantly, this Court reaffirmed the important principle set forth in Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503 (1969): that educators cannot exercise “broad discretion to regulate student expression in the context of student clubs and groups meeting on school premises during non-instructional time, or to discriminate against or exclude a particular student viewpoint from an existing forum allowing for ‘school-tolerated’ expression.” Id., pp. 48-49.

Following this ruling, the District understandably abandoned its suggestion that it is free to engage in viewpoint discrimination in the forum for curriculum-related student groups, and in fact stated affirmatively that it will permit expression of gay-positive viewpoints in the forum. See Clark Decl., Exhibit P, p. 5. As demonstrated below, however, Ms. Seidel has refused to follow that policy, and her own prior practice, in considering plaintiffs’ request to engage in precisely that kind of expression, and has therefore violated plaintiffs’ First Amendment rights.

b. Ms. Seidel has established a routine practice in applying the standards governing access to the forum, but did not follow that practice in reviewing the PRISM Club application.

As implemented by Ms. Seidel, the District’s policy permits the formation and recognition of student groups whose subject matter is taught in a regular course and whose activities provide an “extension and reinforcement, application, and practice of curricular content,” i.e., if it “takes the subject matter [taught in a class at the high school], gives the students a chance to review it, to see it in real life, to practice what they’ve learned in a hands-on type of setting, or to see it in the real world, those types of connections.” See Clark Decl., Exhibit A (Seidel Dep.), pp. 99-101. The District expects Ms. Seidel to apply the standards for curriculum-relatedness the same way to all club applications. See Clark Decl., Exhibit D (Robles Dep.).

Purporting to follow this policy and apply these standards consistently, Ms. Seidel has approved dozens of curriculum-related clubs at high schools in the District, including East High School. A review of some of those approved clubs illustrates Ms. Seidel’s normal practice.

First, and perhaps most analogous to the PRISM Club, Ms. Seidel approved the CHARABANC Club. Initiated “in order to further study and explore aspects of social science,” represented in the acronym “CHARABANC” (Culture, History, Art, Religion, Anthropology, Biologism [sic], Archaeology and Native Civilizations), the CHARABANC Club enabled the participating students to “view[] the sights and peoples of the new and old world through the windows available in Salt Lake City and surrounding areas.” See Clark Decl., Exhibit F (CHARABANC Club Charter for 1997-98). Unfortunately, the CHARBANC Club is no longer active. See Cohen Aff., ¶ 3.

Ms. Seidel also approved the MESA Club. That important club includes “historically and currently underserved minority groups and women students” who are enrolled in a special math class “designed to advance those students into an accelerated math track.” The club “serves as a student support group” and “allows students to associate with other students pursuing the same goals” and to engage in “after-school activities that are exciting, motivational, and support the students’ academic and career goals.” See Clark Decl., Exhibit G (Excerpt from MESA Student Handbook).

Ms. Seidel also approved a student club at West High School called “Odyssey of the Mind.” That club features activities that “involve divergent thinking, brainstorming, creativity, analysis, teamwork, all of the higher-level thinking skills” listed as course objectives – not subjects, but objectives – for the American Studies, International Baccalaureate History and European History classes taught at West High School. Ms. Seidel concluded the club was “curriculum-related” because “the students in these courses are expected to think critically and to do almost like a social critique as part of the understanding of not just facts and history and dates but also how the historical events link together to create a culture.” See Clark Decl., Exhibit A (Seidel Dep.), pp. 101-04, and Exhibit N (Odyssey of the Mind Club Application).

Finally, earlier in this school year Ms. Seidel approved the application of the Polynesian Club at East High School. The Polynesian Club claimed a relationship with the Tongan Language class taught at East High School. According to its application, the purpose of that club is to “provide academic services, support, cultural awareness plus enriching activities thus enhancing the students’ high school experience” and to “allow the students to better understand the Polynesian community” through socials, guest speakers, a luau, demonstrations of ethnic arts and crafts, dances and other activities to “enrich and enhance what is taught in the class room.” See Clark Decl., Exhibit H (Polynesian Club Application).

If Ms. Seidel had properly applied the standards governing access to the forum as reflected in the District’s policy and her own practice, she simply would have compared the PRISM Club’s statement of purpose and planned activities to the subject matter and the course objectives of the courses to which the Club claims a relationship, as she did in approving the other clubs discussed above. But rather than follow her normal practice, which as demonstrated below plainly would have resulted in approval of the PRISM Club, Ms. Seidel deviated from that practice. Ms. Seidel rejected the students’ own description of the subject matter of their group, and substituted her own assumption that “the organizing subject matter of the club narrows to ‘the impact, experience, and contributions of gays and lesbians’ in historical and current events, institutions and culture.” She then concluded that the club is not “curriculum-related” because “[t]his subject matter is not taught in the courses you cite.” See Clark Decl., Exhibit L.

Ms. Seidel’s conclusion is not rooted in any policy, practice or principle. Under the District’s policy, there can be no question that if the subjects of current events or politics or history or social institutions or civil rights were to come up in an existing student club at East High School, the members of those clubs would be free to express gay-positive viewpoints on those subjects (such as a criticism of the recent “Knight Initiative” in California, or a comment on the Log Cabin Republicans, or a thought on the impact of the Holocaust on gays and lesbians, or a statement lauding the recent Vermont decision to recognize same-sex unions, or support for Mayor Anderson’s recent executive order prohibiting discrimination against gay and lesbian city employees), just as other students would be free to express other viewpoints. But whereas other students are also free to organize clubs featuring their unique and important viewpoints (such as the Polynesian Club), plaintiffs have been prohibited from doing so. Apparently, according to Ms. Seidel, students can express gay-positive viewpoints, just not in the curriculum-related setting of their choosing.

In reviewing and approving the application of the CHARABANC Club, Ms. Seidel did not question that club’s statement of its subject matters, or confuse those subject matters with the viewpoints that particular group emphasized (those available through windows in Salt Lake City and surrounding areas, as opposed to those available by looking at the subjects through the eyes of the denizens of a South African township or an Amazon rain forest). Ms. Seidel’s conclusion as to the PRISM Club is similarly inconsistent with her determinations that the “subject matter” of the MESA Club is math (not the continuing struggle of women and minorities for educational, economic and social equality); that the Polynesian Club’s luaus, dances and other activities designed to heighten cultural awareness and understanding extend and reinforce the Tongan Language course content; and that Odyssey of the Mind’s problem-solving and critical-thinking exercises help students fulfill specific history course objectives, including critical thinking. Given the District’s policy, and the legal requirement, of viewpoint neutrality, the viewpoints expressed through the activities of those other clubs cannot be considered any more or less appropriate than the PRISM Club’s viewpoints – those afforded through the “prism” of “the impact, experience and contributions of gays and lesbians” in American history, law, society and culture. [3]

Ms. Seidel’s confusion may be a simple case of a mistake sometimes made by government officials charged with regulating access to a forum – the mistake of discriminating against discussions or activities representing a particular viewpoint on subjects otherwise included within the forum. See Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993) (finding a First Amendment violation in school district’s refusal to permit “the presentation of a religious point of view about a subject the District otherwise opens to discussion on District property,” and rejecting claim that this was “a permissible subject-matter exclusion rather than a denial based on viewpoint”); Cornelius v. NAACP Legal Defense and Educ, Fund, Inc., 473 U.S. 788, 805 (1985) (“the government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject”); Church on the Rock v. City of Albuquerque, 84 F.3d 1273, 1279 (10th Cir. 1996) (forum that featured study of the Bible from literary, philosophical and historical perspectives could not exclude discussion of the Bible from a sectarian viewpoint). [4] For present purposes, it is enough that, in denying the PRISM Club application, Ms. Seidel did not apply the standards governing access to the forum properly. Plaintiffs request that this Court order Ms. Seidel not to violate the Constitution in this way, so that the PRISM Club can meet pending a final decision on the merits.

c. A proper application of the standards governing access to the forum to the PRISM Club application would result in approval of the PRISM Club as a curriculum-related student group.

On its face, the PRISM Club application directly addresses and satisfies the requirements of the District’s policy and Ms. Seidel’s normal practice. The stated purpose of the PRISM Club is “to expand and enhance [the students’] study and understanding of American history and government, law and social institutions, which are topics covered in the U.S. History, American Government and Sociology courses currently taught here at East High School, and to gain hands-on experience in applying the concepts and skills taught in those courses,” “giving interested students an opportunity to enhance their knowledge of American history, government, law and social institutions and to gain a more concrete understanding of how they affect the real lives of gay and lesbian people.” See Clark Decl., Exhibit J (PRISM Club Application).

Laying the PRISM Club application against the template of the District’s policy and Ms. Seidel’s practice reveals the perfect fit. The U.S. History comprises “a survey of U.S. History.” See Clark Decl., Exhibit I (Excerpts of East High School Course Description Catalogue). Discussions and activities directed to viewing historical events from the neglected viewpoint of the experience of gays and lesbians plainly provide an “extension” or “reinforcement” of that core subject matter. The American Government and Law course “includes a familiarization with the various institutions, groups, beliefs, and ideas that constitute the political environment in the United States.” Id. It cannot seriously be disputed that among those “institutions, groups, beliefs, and ideas” are the very matters plaintiffs have stated they want to discuss. The Sociology course includes the “study of human groups, the meaning of culture, cultural variations, cultural values and social control, this individual and his/her personality, psycho-social needs, collective behavior, social processes, communication, social class systems, social institutions (marriage, education, religion, economics, and government), the family and criminology.” Id. Here again, it is beyond any reasonable dispute that plaintiffs’ stated desire to join in the “ongoing dialogue” about such subjects as “whether gays and lesbians should be allowed to serve openly in the military and in organizations such as the Boy Scouts, to marry, to adopt children and form families” does extend or reinforce subjects covered in the Sociology course.

In terms of course objectives, the U.S. History course disclosure statement attached to the PRISM Club application states that students must, among other things, “recognize and evaluate the varied influences on American culture and society.” See Clark Decl., Exhibit I (PRISM Club Application). The Advanced Placement Government and Politics course requires, among other things, that students “show an understanding of issues involving civil rights and civil liberties.” Id. The Sociology course requires that students “develop the ability to look at the social world around them more objectively, instead of viewing it as they want to see it or as others might want them to see it,” “experience a variety of reading materials containing a variety of views and opinions,” and “participate in group discussion and debate.” Id. To achieve those course objectives, plaintiffs stated their intent to “use what is taught in those courses to analyze systems and processes” and to engage in “other political and cultural activities and experiences.” Id.5

In summary, Ms. Seidel has misapplied the standards she herself has enunciated and previously applied for participation in the forum. Plaintiffs’ application on its face shows that the PRISM Club’s subject matters are taught in the referenced courses, and that its planned activities will provide an “extension and reinforcement” of the related courses’ subject matter, as well as an opportunity to achieve specific course objectives. By misapplying the established standards to plaintiffs’ application for recognition as a curriculum-related student group, Ms. Seidel has violated plaintiffs’ First Amendment rights to freedom of speech and association. Pursuant to 42 U.S.C. § 1983, plaintiffs are entitled to injunctive relief prohibiting Ms. Seidel from restricting plaintiffs’ freedom of expression and association other than through the proper application of established standards to all student groups using or seeking to use the limited public forum, and from interfering with plaintiffs’ right to use the limited public forum on the same terms as others.

2. Without Preliminary Relief, Plaintiffs Will Suffer Irreparable Harm. As a result of defendant’s violations of the First Amendment, plaintiffs have suffered and continue to suffer irreparable injury. Ms. Seidel’s refusal to approve the PRISM Club application blocks plaintiffs from meeting, discussing the subjects identified in the application, communicating their particular viewpoint on those subjects in their chosen group setting, and achieving important educational objectives. An infringement of free speech rights, standing alone, constitutes irreparable harm as a matter of law. As Justice Brennan stated in Elrod v. Burns, 427 U.S. 347, 373 (1976): "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." See also Elam Const., Inc. v. Regional Transp. Dist., supra, 129 F.3d at 1347. Plaintiffs have suffered and will suffer irreparable harm, as a matter of law, if they are denied their right to meet based on a misapplication of the standards governing the forum.

3. The Harm To Plaintiffs Outweighs Any Harm To Defendants. Given the Salt Lake City School District’s unequivocal representations to this Court disavowing discrimination against expression of gay-positive viewpoints in the forum for curriculum-related student groups (see Clark Decl., Exhibit P, p. 5), it is difficult to discern the government’s interest in blocking plaintiffs’ speech and to measure the harm that the government might claim to suffer. But this much is clear: "If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson, 491 U.S. 397, 414 (1989). Ms. Seidel’s apparent interest in suppressing speech she evidently considers somehow disagreeable (as indicated by her previously-stated personal opinion that “sexual orientation is not the proper organizing subject matter of a curriculum-related club”) cannot outweigh plaintiffs’ right to free speech, because suppressing even “disagreeable” speech is not a legitimate interest under the law.

Apart from groundless personal concerns about whether certain speech is “appropriate,” Ms. Seidel might advance the District’s undisputed interest in controlling the content of its curriculum. But as discussed above (see supra, p. 15), we are not dealing here with “school-sponsored” speech, as to which school officials might impose reasonable regulations narrowly tailored to achieve legitimate pedagogical goals. Nor are we dealing with the curriculum, but (by Ms. Seidel’s own definition) with discussions and activities that “extend” the curriculum to comprise viewpoints, perspectives and experiences not otherwise covered, thus enhancing students’ educational experience. Plaintiffs are merely seeking to pursue the District’s own stated interest in promoting and advancing student-initiated curriculum-related groups. Therefore, the weight of plaintiffs’ harm is plainly greater in the balance. Elam, 129 F.3d at 1347.

4. The Public Interest Favors Plaintiffs’ Exercise Of Free Speech. Finally, allowing plaintiffs to exercise their free speech rights is not adverse to the public interest, but in fact advances the public interest. There is a broad interest that the public has in honoring one of the most important rights that society hopes young people learn to treasure: free speech. See ACLU v. Johnson, 194 F.3d 1149, 1163 (10th Cir. 1999) (preliminary injunction against enforcement of state law criminalizing dissemination by computer of material that is harmful to a minor, due in part to public interest in protecting free expression); Shrink Missouri Government PAC v. Adams, 151 F.3d 763, 765 (8th Cir. 1998) (injunction against state campaign contribution limits, based on public interest in free speech); J.L. Spoons, Inc. v. City of Brunswick, 49 F. Supp. 2d 1032, 1047 (N.D. Ohio 1999) (“The public interest in protecting the freedom of expression in the face of a prior restraint is especially strong considering that such prior restraints ‘are the most serious and least tolerable infringements of First Amendment rights.’”) (citation omitted); Colin v. Orange Unified Sch. Dist., 83 F. Supp. 2d 1135, 1150 (C.D. Cal. 2000) (public interest supported preliminary injunction ordering school district not to interfere with meetings of student gay-straight alliance).

As demonstrated by Ms. Seidel’s approval of the MESA Club and the Polynesian Club, the District’s policy has not been construed or applied to prevent all minority student groups from pursuing the goals of supporting each other, talking about their common culture and values, and educating their peers about unique aspects of their history and culture. Plaintiffs agree that these clubs are extremely valuable for young people, particularly those who might not otherwise find or be able to express their unique voice. Young people allowed to discuss the subjects they learn in school from a shared but otherwise neglected viewpoint will certainly be better able to make the best possible contributions to their families, their communities and society generally.

As this Court has observed in a related context, and as a federal court in California very recently observed, cases such as this one involve much more than academic legal exercises – they go to our shared value for the dignity and value of human life itself. See Weaver v. Nebo Sch. Dist., 29 F. Supp. 2d 1279 (D. Utah 1998) (noting the “mounting evidence that gay males and lesbians suffer from employment discrimination and, as recent events in Wyoming remind us, other more life-threatening expressions of bias”); Colin v. Orange Unified Sch. Dist., supra, 83 F. Supp. 2d at 1150-51 (given high rate of suicide among gay and lesbian youth and prevalence of anti-gay violence, “[t]his injunction is therefore not just about student pursuit of ideas and tolerance for diverse viewpoints. As any concerned parent would understand, this case may involve the protection of life itself.”).

IV. CONCLUSION

For the reasons set forth above, the Court should grant plaintiffs PRISM Club, Cohen and Hinckley preliminary injunctive relief prohibiting defendant Seidel from continuing to prohibit the PRISM Club from meeting at East High School on the same terms and conditions as other curriculum-related student groups meeting in the forum the District has created and maintained for such groups, and prohibiting defendant from limiting plaintiffs’ right to freedoms of expression and association other than through the application of established standards in consistent, unbiased, non-arbitrary, viewpoint-neutral fashion to all student groups using or seeking to use the limited public forum or from interfering in any way with plaintiffs’ right to use the forum on the same non-discriminatory terms as others.

DATED this 10 day of April, 2000.

SNOW, CHRISTENSEN & MARTINEAU
By Richard A. Van Wagoner

AMERICAN CIVIL LIBERTIES UNION OF UTAH FOUNDATION, INC.
By Stephen C. Clark

Attorneys for Plaintiffs

FOOTNOTES:

1. Plaintiffs’ Motion is limited to seeking preliminary injunctive relief against defendant’s refusal to allow the PRISM Club to meet based on a misapplication of the standards governing the forum. The Motion does not involve additional issues raised in the Complaint, including those relating to defendant’s previous denial of plaintiff Rainbow Club’s application to meet in the forum. Plaintiffs believe the Court can grant the current Motion based on a simple review of the PRISM Club application in light of established standards governing access to the forum.

2. The forum is “limited” because it is available only to student groups and not to groups of any kind. See Widmar v. Vincent, 454 U.S. 263, 272 (1981) (state university created a limited public forum by making its facilities available for the activities of registered student groups, but not others); Bell v. Little Axe Indep. Sch. Dist. No. 70, 766 F.2d 1391, 1402 (10th Cir. 1985) (public school created a limited public forum by making its facilities available for meetings of student clubs and associations).

3. Plaintiffs understand that there are such things as lesbian, gay and bisexual viewpoints. See generally Gay Spirit: Myth and Meaning (Mark Thompson, ed. 1987); The Columbia Reader on Lesbians & Gay Men in Media, Society & Politics (Larry Gross & James D. Woods, eds., 1999); Simon LeVay and Elisabeth Nonas, City of Friends: A Portrait of the Gay and Lesbian Community in America 325-92 (1995); Warren J. Blumenfeld and Diane Raymond, Looking at Gay and Lesbian Life 351-83 (1988); see also Hurley v. Irish American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 570 (1995) (discussing viewpoint expressed by gay contingent that sought to march in St. Patrick’s Day parade under banner with the group’s name). Plaintiffs do not contend that there is one, universally shared lesbian and gay viewpoint on all subjects or even on any particular subject. See James T. Sears, Black-Gay or Gay-Black? Choosing Identities and Identifying Choices, in The Gay Teen: Educational Practice and Theory for Lesbian, Gay, and Bisexual Adolescents (Gerald Unks, ed., 1995), at 135-57 (discussing “the complex intersections of race and homosexuality, particularly among those cultural minority groups most commonly found in public schools”). Plaintiffs also do not contend that all lesbian and gay people subscribe to such perspectives or that one has to be gay or lesbian to hold or express such viewpoints. The point is that the experiences of lesbians and gay men have helped generate different viewpoints from those commonly held in dominant cultures. See People v. Garcia, 77 Cal. App. 4th 1269, 92 Cal. Rptr. 2d 339 (2000) (exclusion of jurors based on sexual orientation unconstitutional because, although not all gay and lesbian people have the same views, they share the experience of societal bias that shapes their views).

4. Ms. Seidel made a similar mistake in one other instance – that involving the application of the Rainbow Club, another group that plaintiffs sought to form to express their viewpoint. This Court previously has pointed out the possible mistake, noting that Ms. Seidel’s “personal observation that ‘sexual orientation is not the proper organizing subject matter of a curriculum-related club’ may reflect an overly narrow perception of gay-positive viewpoints. . . . Concerns about discussion of human sexuality in the public school setting have little bearing upon a discussion of the role of gay and lesbian persons in the Holocaust, or the orientation of various historical or literary figures and its impact upon their lives and work.” See Clark Decl., ¶ 17, Exhibit P (Judgment and Order of Dismissal dated 11/30/99 in East High Gay/Straight Alliance v. Bd. Of Educ., Civil No. 2:98-CV-193J). Plaintiffs’ Complaint asserts that these decisions and other evidence of bias against plaintiffs’ particular viewpoint constitute classic viewpoint discrimination, but as stated above (see supra, n.1) the instant Motion does not raise or depend on any determination of that broader issue.

5. Plaintiffs emphasized at the same time that the PRISM Club is not about “advocating homosexuality” or “promoting a partisan platform.”

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