THOMAS MORE SOCIETY A National Public Interest Law Firm April 16, 2015 Via facsimile, email, and U.S. Mail Hampton-Dumont High School Steve Madson, Principal 101 12th Ave. NW Hampton, 1A 50441 Facsimile: 641-456-4569 Email: smadson@hdesd.org Re: Violation of Student’s Right to Establish Pro-Life Club at Hampton-Dumont High School Dear Mr. Madson: We represent Isabell Akers, a student at Hampton-Dumont High School and president of the proposed student group Hampton-Dumont Students for Life; and Students for Life of America (-SFLA”), a national $01(¢)(3) not-for-profit organization based in Spotsylvania, Virginia, SFLA is one of the nation’s most active pro-life organizations and the largest youth pro-life organization. It is the only national pro-life organization dedicated to training and equipping high school, college, medical, and law school students to defend the preborn and raise awareness on school campuses. Isabell has informed us that you have denied her club the right to become an official student club, on equal footing with the rest of the clubs at Hampton-Dumont High School. In February 2013, Isabell first began the process to seek official recognition of her club, Hampton-Dumont Students for Life. At that time, her request was denied because the club was considered too controver In August 2013, Isabell approached you again, with the support of lowa Right to Life to help explain what the group would do and stand for. For several months, she followed up with you every two Weeks to inquire as to the status of her request. After more than three months, she finally received word that she could not be a school club, but she would be permitted access to space on campus to have meetings as a “community club.” In January 2014, Isabell’s group began to meet. They put up posters in February, only to have them confiscated because non-school clubs are not permitted to put up posters in the hallway, although official school clubs are freely permitted to do so. In 2015, Isabell discovered the resources offered by Students for Life of America and leamed that her club had a legal right to be an official school group. She met with you and her advisors to attempt, once again, to be approved as an official school club. She was rejected again, with the explanation that the issue is so controversial that the school cannot “support” the club, 19 S, LaSalle | Suite 603 | Chicago, IL. 60603 | www.thomasmoresoeiety.org | P: 312.782.1680 | F: 312.782.1887 “Injustice anywhere isa threat to justice everywhere." Rev. Dr: Martin Luther King‘Thomas More Society Letter re: Violation of Student Rights Page 2 of 4 You explained in a written response to Isabell that “the subject of abortion is one that can be controversial, & one the school cannot side one way or the other.” In reference to the forum of student groups, you stated that “we do not provide an unlimited public forum — rather we provide a limited public forum by allowing postings meeting criteria to be placed in a certain area of the school.” Finally, you stated that the mission statement of the group “is not a curriculum related subject. It would be the same decision” for other groups that do not relate to the curriculum. When Isabell asked whether there were any other non-curricular clubs at the school, you told her she would be the first. Under Clubs and Orgai others, the following clubs: © Character Counts! © Cheerleading * DECA! Hampton-Dumont Scholarship Fund FFA (Future Farmers of America) HDHS Book Club International Club Key Club Mock Trial SADD (Students Against Drunk Driving) Hampton-Dumont High School, Clubs and Organizations, available at: http://www-hdhighschool. hdesd.org/ (last accessed April 16, 2015). jons, the Hampton-Dumont High School webpage lists, among Legal Analysis The classification of Isabell’s club as a “community club” or the school’s only “non-curricular” club, and the associated limitations on her group's right to participate in the life of the school as an official student group constitutes a violation of her rights under both the Federal Equal Access Act (“EAA”) and the First Amendment to the United States Constitution, Under the EAA, it is “unlawful for any public secondary school which receives Federal financial assistance ... to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting . .. on the basis of the religious, political, philosophical, or other content of the speech at such meetings.” 20 U.S.C. § 4071 iply put, once the limited open forum is open to one non-curricular club, then aif non- curricular clubs must be treated equally, even if the clubs they wish to form are religious or political. A student group is considered curricular only if it directly relates to the curriculum of the school. The Supreme Court has held that “directly related” includes only clubs meeting one of the following four criteria: 1) The subject matter is taught in a regularly offered course; * DECA is not an acronym for a longer name, but rather is simply known as DECA. It “prepares emerging leaders and entrepreneurs in marketing, finance, hospitality and management in high schools.” DECA Inc., available at www.deca.org (last accessed April 16, 2015).Thomas More Society Letter re Violation of Student Rights Page 3 of 4 2) The subject matter concerns the body of courses as a whole; 3) Participation is required for a course; or 4) Participation results in academic credit. Bd. of Educ. of Westside Cmay. Schs. v. Mergens, 496 U.S. 226, 239-40 (1990) (firmly rejecting definition of “curriculum related” to include anything “remotely related to abstract educational goals” and noting that “such a broad interpretation... would make the [EAA] meaningless.”), The Court further held that clubs such as chess club, a stamp-collecting club, and a community service club did not meet any of these criteria, /d. at 237-38. Broad attempts to shoehorn club top into the context of official school clubs will not be approved—so merely offering P.E. classes does not make a scuba-diving club “directly relate” to the curriculum unless the P.E. classes actually teach scuba living itself. Jd. at 245. Under this standard, Hampton-Dumont High School has opened the forum to many non- curricular clubs. For example, while Key Club presents an admirable message of the value of community service, Mock Trial gives exposure and instruction on the American trial system, and SADD. works to spread the message of the harms of drinking and driving, they are all nonetheless non- curricular clubs. In fact, none of the clubs listed above are legally considered to be curricular clubs. The school may not pick and choose among clubs based on its particular preferences for what the overall content of the group's proposed speech should be, Your denial of Isabell’s request to form and operate a pro-life group on equal footing with these other non-curricular clubs constitutes a clear violation of the EAA. ‘The EAA forbids schools from subjecting a pro-life club to any conditions that do not apply to all other non-curricular clubs at that school. Placing requirements on the posters, leaflets, ot announcements of a pro-life group that differ from those for other groups is unlawful differential treatment, Similarly, labelling some non-curricular clubs as “curricular” to give them better communication options is unacceptable discrimination. Straights & Gays for Equality v. Osseo Area Schs., 471 F.3d 908, 912-13 (8th Cir. 2006) (holding that labelling some non-curricular clubs as curricular and granting those greater access to avenues of communication violated the EAA); permanent injunction aff'd 540 F.3d 911 (8th Cir. 2008). In addition, merely delaying acting on the club’s application for approval—such as happened here at more than one stage of the process—can itself be actionable as disparate treatment that is in violation of the EAA. The EAA protects a club’s right to meet. However, the definition of “meeting” is not limited to merely a gathering of the student members of the club. The EAA explicitly defines “meeting” to include “those activities of student groups which are permitted under a school’s limited open forum and are not directly related to the school curriculum.” 20 U.S.C. § 40723). Therefore, while your decision permits Hampton-Dumont Students for Life to hold meetings in the narrowest colloquial sense of the word, by prohibiting the groups from holding events or posting posters like those that other clubs are permitted to host and put up, the school is in full violation of the EAA, Recognizing this pro-life club as an official school club does not mean the school is endorsing or “supporting” its message—and the students are smart enough to recognize this. In general, simplyThomas More Society Letter re: Violation of Student Rights Page 4 of 4 allowing the formation and operation of any club does not indicate that a schoo! approves or endorses the group’s message, nor does it indicate that the school has “taken a stance” on the issue. Observing that “the proposition that schools do not endorse everything they fail to censor is not complicated,” the Supreme Court has held that public high school students are mature enough to understand that a school does not endorse or support speech that it merely permits on a nondiscriminatory basis. Mergens, 496 U.S. at 250. Congress recognized the same point when drafting the EAA, stating that “[s}tudents below the college level are capable of distinguishing between State-initiated, school sponsored, or teacher-led religious speech on one hand and student-initiated, student-led . . . speech on the other.” fd. at 250-51 (quoting S. Rep. No. 98-357, P. 8 (1984)). Furthermore, an “undifferentiated fear or apprehension of disturbance” is not a ground for censoring student speech. Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 508 (1969). Rather, school authorities may not silence student expression unless they reasonably forecast, based on actual evidence and not mere fear or apprehension of disturbance, that the student expression would lead to either a substantial disruption of the school environment or an invasion of the rights of others. id. at 512. Discussion of controversial topics and distribution of material relating to political issues in public high schools are not prohibited. Rather, under clear Supreme Court precedent, students have the “undoubted freedom to advocate unpopular and controversial views in schools and classtoot balanced only against society’s countervailing interest in teaching students the boundaries of socially appropriate behavior. Bethel Sch, Dist. No. 403 v. Fraser, 478 US. 675, 681 (1986). There is no legally acceptable reason to classify Isabell’s elub differently from any of the multitude of other non-curricular, fully recognized clubs at Hampton-Dumont High School. Therefore, ‘we request that you reverse your decision and promptly approve Isabell Aker’s request to establish, publicize, and actively run a pro-life student group at Hampton-Dumont High School. ‘We respectfully request your response within two weeks, or by Thursday, April 30, 2015. Any response may be directed to the Thomas More Society at the address listed above, or via email to Thank you for your attention to this matter. Very uly yours, celyn Floyd Associate Counsel ce: Matt Heffron, Thomas More Society Omaha, Brown & Brown LLC, 501 Scoular Building, 2027 Dodge Street, Omaha, NE 68102, {III (licensed in NE and LA) (via email only)