Ceniceros ex rel. Risser v. Board of Trustees of the San Diego Unified School District

dissenting.

I respectfully dissent.

I.

The Equal Access Act (“EAA” or “the Act”) provides:

20 U.S.C. § 4071 (a). Based on this anti-discrimination principle, Ceniceros and the religious groups, who have filed amicus *884 briefs, along with the United States, 1 argue that because other noncurriculum related student groups are allowed to meet during school lunch time at the University City High School (UCHS), it would constitute impermissible discrimination not to allow a student religious group to meet at the same time. On its face this syllogistic reasoning may seem sound, but the basic flaw in the argument’s conclusion is the failure to acknowledge that religious activity in a controlled public school environment can never stand on equal footing as other secular noncurriculum activities.

In order to obviate possible church-state entanglement, Congress and the Supreme Court have both recognized that student religious clubs must meet certain conditions which do not necessarily pertain to secular groups. Under the EAA, the Supreme Court has made it clear that a school or its officials may not sponsor, endorse, promote, encourage, lead, advise, guide, direct or participate in…

Opinion by Judge BRUNETTI; Dissént by Judge LAY.

ORDER

The opinion filed July 13, 1995, is withdrawn,

OPINION

Melanie Rose Ceniceros sued the Board of Trustees of the San Diego School District (the District) seeking declaratory and injunc-tive relief and damages. Her complaint alleged that, by denying her religious club the opportunity to meet during lunch as other clubs were allowed to, her_ high school, University City High School (UCHS), violated her rights under the Equal Access Act (Act), 20 U.S.C. §§ 4071-74 (1990), and the Free Speech and Free Exercise Clauses of the Constitution. The parties brought cross-motions for summary judgment. The district court granted the District’s motion and denied Cenieeros’s. We have jurisdiction under 28 U.S.C. § 1291 , 1 and we reverse.

I.

University City High School is a public secondary school located in the San Diego Unified School District which receives federal financial assistance. Classroom instruction begins at 7:25 a.m. All students at UCHS have the same lunch period, from *880 11:30 a.m. to 12:10 p.m. daily, during which time they are free to leave the school campus. ■ No classes are held during lunch. Classroom instruction…