May 21, Re: Violation of Student s Right to Establish Pro-Life Club at West Career & Technical Academy

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1 May 21, 2015 Via facsimile, , and U.S. Mail West Career & Technical Academy Amy Dockter-Rozar, Principal W. Charleston Blvd. Las Vegas, NV Facsimile: Pat Skorkowsy Clark County School District Superintendent 5100 West Sahara Ave. Las Vegas, NV Facsimile: Re: Violation of Student s Right to Establish Pro-Life Club at West Career & Technical Academy Dear Ms. Dockter-Rozar and Mr. Skorkowsky: We represent Angelique Clark, a sophomore at West Career & Technical Academy ( WCTA ) and president of the proposed student group WCTA Students for Life; and Students for Life of America ( SFLA ), a national 501(c)(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. Angelique 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 WCTA. Further, our review of the Clark County School District ( CCSD ) policies and regulations shows that CCSD has created two categories of clubs, differentiated on the basis of whether the clubs topics relate to generic governmental or school goals. West Career & Technical Academy s refusal to officially recognize this pro-life club constitutes a violation of Angelique s rights under both the federal Equal Access Act ( EAA ) and the First Amendment to the United States Constitution. Further, Clark County School District s two tier club policy is itself a violation of all students rights under the EAA and the First Amendment. Factual Background In November 2014, Angelique requested an application to start a club from the Activities Office. On December 17, 2014, she submitted a completed club application, with faculty sponsor signature, constitution, and list of 25 interested students more than double the required minimum of 10 interested students. On February 8, 2015, one of her fellow students passed on the word from her adviser that the club had been denied. On February 9, Angelique spoke to her adviser directly and was informed that

2 Thomas More Society Letter re: Violation of Student Rights Page 2 of 6 Mr. Yee, the vice principal, had said the club was a no go. She received no official denial in writing, just this verbal message from her adviser. On her own, Angelique researched various aspects of the law as it applies to students rights in forming clubs on public high school campuses. February 18, she sent a letter summarizing her findings to both Mr. Yee and Ms. Dockter-Rozar. On February 26, Angelique had a meeting with Mr. Yee and her adviser. At this meeting, Mr. Yee informed her of various reasons her club was unacceptable. These reasons included: The name was not inclusive enough it would make people on campus with the opposite view feel left out and look bad for the school in the media. Regardless of the name, simply having a club that picks a side on the topic of abortion was not inclusive enough. Permitting a pro-life club would cause negative media coverage of the school for supporting the pro-life movement. There are far more qualified people who know more about abortion than a sophomore in high school. The topic of abortion is controversial. Public schools are different when it comes to First Amendment rights to speak and assemble. At the end of the meeting, Mr. Yee said he wasn t even the person to decide on club applications. So on March 12, 2015, Angelique sent an to the student council teacher whom she had been informed was the one with the authority to decide regarding her application. She received no response to that or to her follow up two weeks later. At the end of March, with still no further answers or communication from the administration at WCTA, Angelique reached out again to schedule a meeting with Mr. Yee. He offered a time after school on April 16 and Angelique re-arranged her schedule to be able to attend. However, an hour before the meeting, Mr. Yee canceled and asked to re-schedule, an offer on which he failed to follow through. By this point, Angelique had reached out to SFLA for support and been connected with our office for advice. When no new meeting was scheduled, at our suggestion, Angelique offered a copy of our standard Opinion Letter to Mr. Yee. She was later told that the letter would be sent to the Clark County School District ( CCSD ) Communications Office and Legal Department, for review by the Superintendent. Based on our review of the CCSD policies, and the fact that Angelique s original application was on a Club Charter form, we advised her to re-submit the application on the proper request for Club Sanction form. However, when she went to get a copy of that form, she was informed by Mr. Yee that it does not exist.

3 Thomas More Society Letter re: Violation of Student Rights Page 3 of 6 WCTA currently has, among others, an Anime Club, a Key Club, a Gay/Straight Alliance, and a Bible club. District Policy CCSD has several policies that apply to clubs. CCSD Reg. 5132; CCSD Reg ; CCSD Reg (attached). Regulation 5132 separates clubs into two tiers, Officially Chartered and Sponsored ( Chartered ) and Officially Sanctioned But Not Sponsored ( Sanctioned ). The policy defines the appropriate subject matter for Chartered clubs as those with topics having a direct association with stated State, District and/or school goals and objectives. CCSD Reg. 5132, I.A. Sanctioned clubs allow topics not directly associated with those governmental goals, but still requires that they hav[e] wide community approval. Id. at II.A (listing examples of Boy Scouts, Girl Scouts, Junior Achievement, and Key Club ). Regulation attempts to reconcile this club policy with the legal requirements of the EAA by addressing Voluntary Student-Initiated Equal Access Meetings. It includes the requirement that student organizations under this regulation (and apparently only the student organizations under this regulation) follow Regulation 1110 s approval process in order to distribute any materials or advertising. CCSD Reg , III; see also CCSD Reg Legal Analysis The rejection of Angelique s club application as too controversial, not inclusive enough, leading to negative media attention for the school, and because far more qualified people exist to speak on the topic, as well as the continued delay in the application process, constitute a violation of her rights under both the Federal EAA and the First Amendment to the United States Constitution. Further, CCSD s club regulations as a whole are a violation of her rights and the rights of every student in the CCSD district under both the Federal 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 Simply put, once the limited open forum is open to one non-curricular club, then all noncurricular 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; 2) The subject matter concerns the body of courses as a whole;

4 3) Participation is required for a course; or 4) Participation results in academic credit. Thomas More Society Letter re: Violation of Student Rights Page 4 of 6 Bd. of Educ. of Westside Cmty. Schs. v. Mergens, 496 U.S. 226, (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. Id. at Broad attempts to shoehorn club topics 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 scubadiving itself. Id. at 245. Under this standard, WCTA has opened its club forum to many non-curricular clubs. Key Club, while presenting an admirable message of the value of community service that the school undoubtedly agrees with, is not tied to any particular course or the body of courses as a whole. The Anime Club, the Gay/Straight Alliance, and the Bible Club are all examples of other non-curricular clubs that the school has permitted. 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 Angelique 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. CCSD s definition of Chartered versus Sanctioned clubs appears to attempt to create a distinction between curricular and non-curricular, but fails. While differentiating between curricular and non-curricular clubs is acceptable, labelling some non-curricular clubs as curricular to give them more rights is unacceptable discrimination. Straights & Gays for Equality v. Osseo Area Schs., 471 F.3d 908, (8th Cir. 2006) (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); see also Prince v. Jacoby, 303 F.3d 1074 (finding policy permitting some non-curricular clubs official status and other non-curricular clubs only unofficial access to the forum violated both the EAA and the First Amendment). By including a broad array of clubs that have any relationship whatsoever to the stated... goals and objectives not just of the school, but of the government itself as a whole, CCSD has included nearly every non-curricular club in its higher tier of Chartered clubs, rejecting only those whose messages it disagrees with. Further, it has not applied even this policy to its current clubs it explicitly lists Key Club as an example of a Sanctioned club, yet WCTA has a Key Club without even having an application form in existence for a club to apply to be a Sanctioned one. Therefore, it is clear that Key Club has been permitted, at WCTA at least, as a Chartered club. Further, CCSD s requirement that Sanctioned clubs have wide community approval serves as a content-based discriminatory requirement. By its very nature, requiring that the club be on a topic that is popular excludes all content that is unpopular. This goes against the core purpose of the First Amendment, which serves precisely to protect unpopular speech and outright violates the EAA, which explicitly prohibits content-based discrimination in approving clubs.

5 Thomas More Society Letter re: Violation of Student Rights Page 5 of 6 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. 4072(3). Thus, 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, or announcements of a pro-life group that differ from those for other groups is unlawful differential treatment. 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. Here, Angelique s club has been subject to an extremely extended approval process over five months now with the administration stone-walling and ignoring her requests to meet and attempts to explain why her club must legally be approved. This is unacceptable treatment. CCSD s policies also give disparate treatment to different levels of clubs, based not on their curricular or non-curricular status, but instead on CCSD s preference for the content of their speech. This creates an atmosphere where only approved speech is permitted and clearly violates the EAA as well as the First Amendment as content-based discrimination. 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 allowing the formation and operation of any club does not indicate that a school 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. Id. at (quoting S. Rep. No , 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. Instead, under clear Supreme Court precedent, students have the undoubted freedom to advocate unpopular and controversial views in schools and classrooms, balanced only against society s countervailing interest in teaching students the boundaries of socially appropriate behavior. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681 (1986). There is no legally acceptable reason to classify Angelique s club differently from any of the multitude of other non-curricular, fully recognized clubs at WCTA. Therefore, we request that you reverse your decision and promptly approve Angelique Clark s request to establish, publicize, and actively run a pro-life student group at WCTA.

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7 CLARK COUNTY SCHOOL DISTRICT REGULATION 5132 CLUBS AND ORGANIZATIONS The Clark County School District recognizes that full use and advantage of all resources cannot occur within the hours school is normally in session. Extended opportunities fro their use will be provided through clubs, organizations, and activities officially recognized in each of the schools of the District. Each school will give recognition to clubs, organizations, or activities in two categories: officially chartered and sponsored by the school and officially sanctioned but not sponsored by the school. I. Officially Chartered and Sponsored A. Officially chartered and sponsored clubs, organizations, or activities are limited to those having a direct association with achieving stated State, District and/or school goals and objectives. B. Charters for school clubs, organizations, or activities shall be issued through the school principal. Applications for charter shall include name, type of club, organization or activity, purpose, aims, activities, and finances. C. Each chartered organization shall have a sponsor from the faculty appointed by the principal. D. Failure to function within the limits of the charter will be cause for the revocation of the charter and disbandment of the club, organization, or activity. II. Officially Sanctioned But Not Sponsored A. Officially sanctioned but not sponsored clubs, organizations, or activities are those having wide community approval but no direct association with school activities. Examples of such clubs, organizations, or activities are Boy Scouts, Girl Scouts, Junior Achievement, and Key Club. B. Sanction for clubs, organizations, or activities shall come from the principal. C. Each sanctioned club, organization, or activity shall have a sponsor deemed responsible by the principal.

8 5132 (Page 2) D. Failure to function within the limits of the sanction will be cause for revocation of sanction and result in loss of recognition and use of school resources. III. Club, Organization, or Activity Insignia A. Students will be permitted to display on wearing apparel, personal property, or private cars only insignia of officially school-chartered or officially school-sanctioned clubs, organizations, or activities. B. Unauthorized insignia on school property or at school sponsored activities will be confiscated after reasonable efforts have been employed to obtain voluntary removal. IV. In the event of any conflict between the provisions of this regulation and Regulation , Regulation will control. Review Responsibility: Instructional Division Adopted: [5131.1:7/12/63] Revised: (8/13/81; 9/13/94) Pol Gov Rev: 6/28/01

9 CLARK COUNTY SCHOOL DISTRICT REGULATION VOLUNTARY STUDENT-INITIATED EQUAL ACCESS MEETINGS The Clark County School District recognizes that secondary school students, grades 6-12, have equal access to conduct meetings on the same basis as other noncurriculum related student groups, during noninstructional time within a limited open forum and will not be discriminated against on the basis of religious, political, philosophical or other speech content. All clubs will have equal opportunities as provided by law. I. Meetings conducted under equal access: must be voluntary and student initiated; are not sponsored by the school, the district, or their agents or employees; may not materially and substantially interfere with the orderly conduct of educational activities within the school; must not be directed, conducted, controlled, or regularly attended by nonschool persons; and may have employees of the school or district present at religious meetings only in a nonparticpating capacity. II. This regulation does not authorize any district school, its agents or employees to: A. Influence the form or content of any prayer or other religious activity; B. Require students or district employees to participate in prayer or other religious activity or to attend a student-initiated meeting if the content of the meeting is contrary to their beliefs; C. Use public funds beyond the incidental cost of providing space for the student-initiated meetings; or D. Sanction meetings that are otherwise unlawful. III. Student organizations and individual members of student organizations may distribute materials in conformance with district Regulation 1110.

10 (Page 2) This regulation does not alter the authority of the school, its administration and staff, to maintain order and discipline on school premises, to protect the wellbeing of students and staff, and to assure that the attendance of students at any meetings held under this regulation is voluntary. Legal Reference: Equal Access Act, 20 USC ss Review Responsibility: Instructional Division Adopted: [5132.4:5/14/91] Revised: (5/11/93; 7/12/94) Pol Gov Rev: 6/28/01

11 CLARK COUNTY SCHOOL DISTRICT REGULATION DISTRIBUTION OF MATERIALS BY AND THROUGH STUDENTS 1110 I. GENERAL DISTRIBUTION OF MATERIALS THROUGH STUDENTS All requests from groups or individuals, other than the Clark County School District, to distribute materials through students will be referred to the Deputy Superintendent of Instruction. The Deputy Superintendent of Instruction will determine whether the materials comply with established guidelines and district policy as set forth in Section III. Requests to distribute material through students on a school-wide basis for school-based projects will be made to the principal who will determine whether the request complies with district policy as set forth in Section III. II. GENERAL DISTRIBUTION OF MATERIALS BY STUDENTS A. Approval for General Distribution. 1. Prior to any general distribution of written material, evidence of parental permission must be provided to the principal and a sample provided of the material sought to be distributed. 2. Unless the principal determines that the material falls within one of the prohibited categories set forth in Section III, the material will be approved for distribution. The distribution shall not be restricted or denied solely because of religious, political, or philosophical content of the material. 3. The principal must review the material and make a decision in writing within three (3) school days of receiving the material. If the request is denied, the principal will specify the reasons for the denial. 4. If the principal does not approve the material for distribution, an appeal may be made to the region superintendent. The region superintendent will make a decision in writing within two (2) school days of receiving the appeal. The decision of the region superintendent is final. 5. If, following the approval of a distribution, the principal determines that the distribution materially and substantially interferes with the requirements for good order and discipline in the operation of the school, the principal will terminate the distribution. The principal must specify in writing the reasons for the termination within

12 1110(Page 2) three (3) school days. An appeal may be made to the region superintendent. The region superintendent will make a decision in writing within two (2) school days of receiving the appeal. The decision of the region superintendent is final. B. Time, Place, and Manner of Distribution 1. After receiving approval to distribute material, the principal must be advised of the day(s) and time(s) when the distribution will be made. 2. The distribution must be made in a manner and at times that will not be disruptive of normal school activities. Distribution within classrooms is disruptive of normal school activities and is prohibited. 3. The distribution must be made in a peaceful and non-argumentative manner without compelling or coercing acceptance of the material by other students. III. UNACCEPTABLE WRITTEN MATERIALS The following will be considered unacceptable written material for general distribution in and upon the facilities of the Clark County School District: 1. Material that is reasonably anticipated to substantially interfere with the work of the school or impinge upon the rights of other students. 2. Material that promotes hostility, disorder, violence, or the commission of a crime. 3. Material designed for commercial purposes. 4. Material that is libelous. 5. Material that is profane, lewd, indecent, or offensive as defined by prevailing community standards throughout the district. 6. Material that would be subject to the provisions of NRS if distributed by district employees. Review Responsibility: Instruction Unit Adopted: [1140:7/12/63] Revised: (10/8/81; 9/14/93) Pol Gov Rev: 6/28/01 Revised: 10/24/02