Case Document
March 30, 2001

Motion For Summary Judgment: Goulart and Travers v. Calvert County


UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

LYDIA GOULART and KYLE TRAVERS,

          Plaintiffs,

     v.

PAUL D. MEADOWS, in his official capacity as Division Chief of the Calvert County Parks and Recreation Department; and the BOARD OF COUNTY COMMISSIONERS OF CALVERT COUNTY,

          Defendants.

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Case No. PJM00CV286

MEMORANDUM IN SUPPORT OF
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

TABLE OF CONTENTS

FACTS

3
OF ARGUMENT

12
ARGUMENT

15
Summary of Argument

3
I.
THE COUNTY OPERATES A DESIGNATED PUBLIC FORUM AT ITS COMMUNITY CENTERS AND UNCONSTITUTIONALLY EXCLUDES HOME SCHOOLING FROM THE FORUM

15
 
A.
BY POLICY THE COUNTY HAS DESIGNATED A PUBLIC FORUM AT ITS COMMUNITY CENTERS

17
 
B.
BY PRACTICE THE COUNTY HAS DESIGNATED A PUBLIC FORUM AT ITS COMMUNITY CENTERS

19
 
C.
EXCLUSIONS FROM A DESIGNATED FORUM ARE SUBJECT TO STRICT SCRUTINY

21
II.
THE COUNTY INTEREST TO STOP DUPLICATION OF SPENDING ON EDUCATION IS NOT COMPELLING AND NOT CONSISTENTLY FOLLOWED

25
 
A.
THE COUNTY INCURS NO ADDITIONAL COSTS WHEN IT ALLOWS HOME SCHOOLERS TO MEET AT THE COMMUNITY CENTERS

26
 
B.
THE COUNTY ALLOWS OTHER “DUPLICATION OF FUNDING” TO TAKE PLACE AT THE COMMUNITY CENTERS

28
 
C.
CONSTITUTIONALLY, GOVERNMENT DOES NOT “SUBSIDIZE” A PARTICULAR USER WHO UTILIZES A GOVERNMENT FACILITY OR SERVICE OPEN TO ALL

30
 
D.
THE COUNTY’S REAL MOTIVATION MAY BE COMPELLING, BUT IT CAN BE ACHIEVED THROUGH A LESS RESTRICTIVE ALTERNATIVE

32
III.
THE COUNTY POLICY TO EXCLUDE HOME SCHOOLERS FROM COMMUNITY CENTER USE VIOLATES THE EQUAL PROTECTION CLAUSE

34
CONCLUSION

39

     COME NOW the Plaintiffs and submit the following memorandum of points and authorities in support of the Plaintiffs’ Motion for Summary Judgment.

FACTS

CALVERT COUNTY’S COMMUNITY CENTERS


     The Board of Commissioners for Calvert County, Maryland (“County”) operates four community centers for use by the public [hereafter, the "Community Centers"].1

  • North Beach Community Center in North Beach

  • Northeast Community Center in Chesapeake Beach

  • Mt. Hope Community Center in Sunderland

  • Southern Community Center in Lusby.

     The County offers rooms at each of the four Community Centers for members of the community to reserve.2 The County has a written policy governing use of the Community Centers by the public.3 It describes the permitted uses at the Community Centers as follows:

     The purposes of the community centers are:

  • to provide a place for Park and Recreation programs;

  • to provide a meeting place for community organizations;

  • to provide a place for large community events;

  • to provide a place for teens to gather; and

  • to provide a place to pursue fitness activities.

     Additionally, the standardized Calvert County Parks and Recreation application form for use of the Community Centers lists “workshop” and “lecture” as examples of activities the County permits at the Community Centers.4

THE COUNTY ALLOWS COMMUNITY GROUPS TO ENGAGE IN
EXPRESSIVE ACTIVITIES AT THE COMMUNITY CENTERS

     The County has allowed a broad array of private community organizations and individuals, as well as other governmental entities, to use the facilities for a wide range of First Amendment activities.

- Boy Scouts, Girl Scouts, Cub Scouts and Brownies.5

- partisan political meetings, such as meetings by the Democratic or Republican parties.6

- church worship services and other religious seminars7

- Monthly meetings of the 4-H Calvert Caballeros Horse and Pony Club8

- Computer workshop put on by Junior Cyberpals9

- Irish step dancing practice10

- Girls’ club to discuss books and magazine articles11

- meetings of the Amateur Radio Club12

- rehearsals of the Shakespearean play, Love’s Labours Lost13

- Fundraiser for the American Heart Association, sponsored by the Tidewater School14

- Boys’ Clubs and Girls’ Clubs of Calvert County for “boys and girls activities”15

- Bible studies16

- crafts and water color program sponsored by Association of Retarded Citizens of Southern Maryland17

- Moms and Tots playgroup, where “preschool children meet to develop social skills, songs and games, some crafts”18

- T.H.U.G.S. computer programming workshop and drama group for teenagers19

- Modern dance workshop sponsored by the Maryland Modern Dance Collective20

- play war fantasy game Warhammer 40K21

- camp sponsored by the Performing Arts Youth Society22

- group of approximately 20 friends getting together to work on family/friends photo album23

- The County Library offers courses at the Community Centers where students can learn how to weave or participate in a gingerbread workshop.24 The County Library also sponsors large meetings at the Community Centers, such as puppet shows for children and other programs for larger groups.25 The County Library is a part of the Calvert County government.26

- the County even permits home schooling groups to meet to plan events and activities for home schooling their children, as long as they do not actually home school children during the planning meetings.27

THE COUNTY ALLOWS INSTRUCTION, TEACHING AND CLASSES
BY PRIVATE PARTIES AT ITS COMMUNITY CENTERS

     The County also permits private individuals unconnected to the County to teach courses and offer instruction and classes at the County Community Centers:

- classes teaching English to non-English speaking people28

- course in magnets and ceramic technology29

- Patuxent River Sail and Power Squadron instruction in vessel safety30

- workshop on music teaching techniques sponsored by the Music Teachers Association of Southern Maryland31

- skin care and nail care class32

- class teaching baton twirling33

- church-sponsored marriage and parenting enrichment seminar34

- violin lessons35

- The Literacy Council teaches people to read at the Community Centers36

- theater and drama instruction for youth ages 9-1637

- CPR training and first aid training38

- U.S. Census Bureau training for personnel to conduct the 2000 census39

- Tutoring children who could not be taught at a public school or at home40

- The County offers a myriad of courses on a wide variety of topics sponsored by the Parks and Recreation Department. The County has offered at the Community Centers classes on math tutoring, sewing, porcelain doll making, sign language for the deaf, drawing, scratch board art, pressed flower pictures, basket making, Russian language, crochet, knitting, guitar, cooking, oil painting, and many other courses.41

ACTIVITIES THE COUNTY PROHIBITS AT THE COMMUNITY CENTERS

     By policy, the County prohibits the following activities in its Community Centers:

- for profit activities;42

- any activities that are illegal, or that may incite a riot or disturbance, or any activities that violate the rules and regulations of the Calvert County Division of Parks and Recreation43

- Possession and consumption of alcoholic beverages is prohibited at the Community Centers44

     In addition, there are unwritten policies banning several other activities at the Community Centers. They include:

- Private parties or private dances may not be held at the gymnasiums, because they are dedicated to athletic activities.45

- cheerleading46

- home schooling47 and other forms of private education48

THE COUNTY’S BAN ON HOME SCHOOLING ACTIVITIES

     By an unwritten policy, the County prohibits home schooling at the County Community Centers.49 The County prohibits home schooling activities in the Community Centers because of educational reasons, not because there is a shortage of space to accommodate home schooling there.50

     The policy against home schooling began when a private school known as the Ben Franklin Academy asked to use the entire Mt. Hope Community Center for classes from 8:00 a.m. until 4:00 p.m. every day.51 The County denied Ben Franklin partially due to the fact that it requested so much space,52 and also because the County spends over half its budget on public education, and that the Community Centers were for recreation. The County did not want to mix the two functions.53

     The County letter interpreted its ban on private school use of the Community Centers to extend to home schooling as well.54 Since that date, however, the County permitted several home schooling uses at Community Centers.55 Even as late as December of 1999, home schoolers were using Community Centers for educational purposes. The County enforced its unwritten policy, however, against the two Plaintiffs, Lydia Goulart and Kyle Travers, when they separately applied to use a Community Center in 1999 for a geography club and a fiber arts club, respectively.

THE COUNTY PROHIBITS MRS. GOULART’S GEOGRAPHY
CLUB FROM MEETING AT A COMMUNITY CENTER

     Lydia Goulart, one of the Plaintiffs, home schools her children.56 She first used the Northeast Community Center for home schooling in 1995 when she took her children there twice a month for art and gym classes.57 Her children also participated in a drama club at the Northeast Community Center from September 1996 through May 1997.58 Mrs. Goulart also had her eldest son take a biology class at the Northeast Community Center during the 1998-99 school year.59

     In June 1999, Mrs. Goulart applied to meet at the Northeast Community Center for a geography club for home schoolers to meet on Tuesdays during the school year of 1999-2000.60 The County allowed the geography club to meet once on September 14, 1999.61 After the club’s first meeting, Mary Lou Johnson, the coordinator of the center, informed Mrs. Goulart that the geography club would no longer be allowed to meet at the Community Center because it was home schooling.62

     Mrs. Goulart’s daughter participated in Girl Scouts at the Community Center, which Mrs. Goulart listed on her portfolio of home school activities that she shows to representatives of her umbrella school to fulfill the requirements of Maryland’s compulsory attendance law.63

THE COUNTY PROHIBITS MRS. TRAVERS’ FIBER ARTS
CLUB FROM MEETING AT A COMMUNITY CENTER

     Kyle Travers is a home schooling mother of three children.64 Her husband is a professional firefighter for Anne Arundel County.65

     Mrs. Travers’ daughter Jenni took a research paper class for home schoolers at the Northeast Community Center.66 Her children have taken other classes at the County Community Centers, such as ballet and tumbling.67

     Mrs. Travers submitted an application dated Oct. 13, 1999 to use the Northeast Community Center for a “fiber arts club” that would engage in knitting, crocheting, spinning and weaving.68 She anticipated that 15-20 home school students would participate. She and others would demonstrate knitting and other fiber art techniques to the students, as well as each individual working on their own projects.69 She anticipated that she would list participation in the fiber arts club in her children’s home schooling portfolios.70

     Mary Lou Johnson, the director of the Northeast Community Center, informed Mrs. Travers that her fiber arts club could not meet at the center because of the County’s unwritten policy not to aid any form of private education at the centers.71 A written comment on the application of Kyle Travers dated Oct. 13, 1999 to use the Northeast Community Center for a Fiber Arts Club states that a county officials had “explained Commissioners’ policy that states home schoolers may not use Community Centers.”

     In the past the County has allowed other home school activities to meet and occur at the various Community Centers, especially the Northeast Community Center because the director, Mary Lou Johnson, was unaware of the policy against home schooling use until October, 1999.72 Ms. Johnson, however, supplied reports to Paul Meadows from 1996 to 1999 showing regular use of Community Center facilities for home schooling during that period.73

SUMMARY OF ARGUMENT

     Calvert County has created a public space for expressive activity. The County allows a broad variety of groups to use its Community Centers for a wide variety of activities. The County has established a short list of reasonable restrictions on the use of the Community Centers: no alcohol, no criminal activity, no profit-making activities. The County has established an even shorter list of unreasonable restrictions on the use of the Community Center: no home school activities. This violates the Constitution in several respects.

     This freedom of speech case is a textbook example of public forum analysis. The Community Center is not a traditional public forum (i.e., streets and parks), but neither is it a non-public forum (such as a military base or a public school classroom). The Community Centers are "designated public fora" which have been opened to expressive activity by government choice. Once the government creates a public space for expressive activity, it cannot pick and choose which expressive activities it prefers. It has done just that in this case, however, and so has violated the First Amendment.

     Governments may impose reasonable time, place, and manner limitations on the use of a designated public forum. Calvert County did just that, some years back, when it refused to allow a private school to meet all day, every day, at a Community Center. The Constitution is not violated by a content?neutral limit on the amount of time that any one group may use a public resource. Unfortunately, the County has converted a one?time decision limiting time, place, and manner (nobody, including a private school, can use the Community Center all day, every day) into an ongoing policy of invidious discrimination (no home or private school groups can use the Community Center for educational purposes).

     The County claims it can discriminate against private and home schoolers because the Community Center is not a designated public forum, but the only evidence to support the claim that the Community Center is not a designated public forum is that the County discriminates against private and home schoolers. This cannot be right. This logic would allow any government to censor any speech at any time on any public property other than the traditional public fora (streets, parks, and sidewalks).

     The government would need a compelling interest to shut some speakers out of a designated public forum, and even then, it would have to use the least restrictive means. The County alleges that it excludes home schoolers to keep from duplicating services. Since the County already spends a great deal of money on the public school system, it argues that any additional services to home schoolers would be wasteful. This argument fails on factual and constitutional grounds. First, there is no additional cost to the County to allow a home school group to use an empty room at the Community Center. This means there is no waste as a matter of fact. But, secondly, even if there were some measurable financial support for home education, the County has no compelling need to eliminate it. The County's interest in avoiding "duplication of services" certainly is not more compelling than its interest in avoiding the establishment of religion, yet the County allows religious services to take place on government property while forbidding educational activity.

     The County has violated the Free Speech Clause of the First Amendment by shutting out one kind of expressive activity, but it has also violated the Equal Protection Clause of the Fourteenth Amendment by discriminating against one small group of citizens for exercising their fundamental right to direct the education of their own children. Troxel v. Granville, 530 U.S. 57 (2000). The County lets anybody use the Community Center for non-profit educational activities—anybody except for private and home schoolers.74 If a group of public school children want to get together for a knitting class, that is fine with Calvert County; but if home school children want to start a Fiber Arts Club, it is forbidden. Equal Protection law forbids this kind of discrimination just as surely as it forbids discrimination on the basis of race or religion. The Equal Protection clause prohibits the government from discriminating against a person in the exercise of a fundamental right unless it can show that it must do so to protect a compelling interest. Minnesota Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575, 585 (1983).

     Calvert County has designed and enforced a policy that is intended to keep a small minority of its citizens (home and private school children) from enjoying benefits that are open to the majority. This violates the Equal Protection clause. The County allows some voices to speak and shuts other voices out, which violates the Free Speech clause. The County justifies its actions on a purported interest (avoiding duplication) that is factually false and constitutionally frivolous. This Court should therefore grant summary judgment to Plaintiffs.

ARGUMENT

I.
THE COUNTY OPERATES A DESIGNATED PUBLIC FORUM AT ITS COMMUNITY CENTERS AND UNCONSTITUTIONALLY EXCLUDES HOME SCHOOLING FROM THE FORUM

     The complaint alleges that the County has created by policy or practice a designated public forum in the Calvert County Community Centers, from which it cannot constitutionally exclude the Plaintiffs. “The Constitution forbids a State to enforce certain exclusions from a forum generally open to the public, even if it was not required to create the forum in the first place.” Widmar v. Vincent, 454 U.S. 263, 267-68.

     The Fourth Circuit Court of Appeals recently recognized that “courts should evaluate First Amendment rights on government-owned property under a public forum analysis.” Warren v. Fairfax County, 196 F.3d 186, 190 (4th Cir. 1999), citing Arkansas Educ. Television Comm’n v. Forbes, 523 U.S. 666 (1998). The court went on to discuss the three types of fora and the varying ways in which the government may limit access to those properties.

     The traditional public forum. “[T]raditional public fora have objective characteristics which ‘require the government to accommodate private speakers’” 196 F.3d at 191, quoting Ark Educ., 523 U.S. at 678. “The archetypal examples of traditional public fora are streets, sidewalks, and parks:” Id. at 191. These places “have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Perry Educ. Ass’n v. Perry Local Educators Ass’n, 460 U.S. 37, 45 (1983). In a traditional public forum, access “may be limited only by content neutral and ‘reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions . . . are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.’” Warren v Fairfax County, 196 F.3d 186, 192, quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). “Exclusion on the basis of speaker-identity is valid only where the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest.” Id. (citation omitted).

     The nonpublic forum. The Fourth Circuit explained that this category of government properties includes those “which are not traditional public fora and which the government has not intentionally opened to expressive conduct.” Id. Examples of nonpublic fora are prisons, Adderley v. Florida, 385 U.S. 39 (1966), public school classrooms during teaching time, Miles v. Denver Public Schools, 944 F.2d 773, 776 (10th Cir. 1991), military reservations, Greer v. Spock, 424 U.S. 828 (1976), and a school district’s internal mail system, Perry, 460 U.S. 37. “[R]estrictions on speech in nonpublic fora are justified to the extent that the speech at issue would interfere with the objective purposes and use of the forum.” Warren v. Fairfax County, 196 F.3d at 193.

     The designated public forum. Called a hybrid of the other two categories, designated public fora “are those properties which the government has opened for expressive activity to the public, or some segment of the public.” Id. “The government creates a designated public forum when it purposefully makes property ‘generally available’ to a class of speakers.” Id. Although the government “is not required to indefinitely retain the open character of (such a forum), as long as it does so it is bound by the same standards as apply in a traditional public forum.” Perry, 460 U.S. at 45. This means that “if the government excludes a speaker who falls within the class to which a designated (limited) public forum is made generally available, its action is subject to strict scrutiny.” Ark. Educ. 523 U.S. at 677. To illustrate this concept, the Fourth Circuit explained that “a University may not exclude certain student speakers from meeting space or university funding otherwise available on a generalized basis to students and student groups.” Warren v Fairfax County,196 F.3d at 193-194 (Citations omitted). Similarly, “once a limited forum has been created, entities of a ‘similar character’ to those allowed access may not be excluded.” Id., quoting Perry, 460 U.S. at 48.

 
A.
BY POLICY THE COUNTY HAS DESIGNATED A PUBLIC FORUM AT ITS COMMUNITY CENTERS

          The Supreme Court has directed courts to examine the policy and practice of the government to determine what kind of forum the government has created. Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 47 (1983) and Ark. Educ. Tele. Comm’n v. Forbes, 460 U.S. 37, 118 S.Ct. at 1641 (1998).

          The Calvert County Use Policy75 opens its Community Centers for a wide array of purposes:

  • To provide a place for Park and Recreation programs;
  • To provide a meeting place for community organizations;
  • To provide a place for large community events;
  • To provide a place for teens to gather; and
  • To provide a place to pursue fitness activities

     This written policy demonstrates the County’s clear intention to open the Community Centers generally to the public. The policy opens the centers as “a meeting place for community organizations” which means they may meet for debate, lectures, discussions, performances and other expressive activities protected by the First Amendment. The County also opens the centers for “large community events,” again allowing a broad range of expressive activities to take place. The policy contains no narrow or specific parameters that a group or individual must meet in order to use the facility. It may be fairly concluded from the Use Policy that the Community Centers are generally available to the citizens of Calvert County.

     The only uses the policy prohibits are

“a. Business of for profit activities,

b. Any activity which is illegal, may incite a riot or disturbance, and

c. Possession or consumption of alcoholic beverages.”76

     The policy contains no written prohibition of educational activity of any kind, and certainly not of home schooling activity. The Use Policy says, “The Recreation Coordinator reserves the right to refuse or revoke any application not in accordance with the provisions outlined herein.” The Plaintiffs before this Court have been denied use without reference to anything outlined in the written Use Policy. In fact, the application form referred to in the Use Policy lists “workshop” and “lecture” as examples of activities for which application may be made.77 These are precisely the uses for which the Plaintiffs intended to put the Community Center.

 
B.
BY PRACTICE THE COUNTY HAS DESIGNATED A PUBLIC FORUM AT ITS COMMUNITY CENTERS

     The County removes any doubt about the open nature of its forum in the Community Center by permitting a vast array of community groups and expressive activities to occur there. As detailed in the Facts section of this brief, the County allows hundreds of groups, such as the Boy Scouts, private music teachers, churches, the Literacy Council, Power Squadron, players of war fantasy games, 4-H Clubs, home owner associations, photo album assemblers, mom and tot groups, and many, many others to meet for play rehearsals, discussions, music lessons, instruction, religious worship services and many other types of expressive activities protected by the First Amendment. Cheerleading and home schooling are the only two expressive activities the County bans from its facilities.

     The County analyzes this case backwards. It argues that because it excludes home schoolers and a few others from the forum after they submit to an application process, it operates a nonpublic forum. The fact that the County has excluded other home educators from the forum is not a factor which changes the facility from a designated public forum to a non-public forum. See, e.g., Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995), 115 S.Ct. 2116-17; Perry, 460 U.S. at 45 n.7. The First Circuit observed that the Supreme Court “has indicated that it will not infer an intent not to designate a public forum solely from the fact that the government excluded certain speech or speakers in the case before it.” AIDS Action Committee of Massachusetts, Inc. v. Mass. Bay Transp. Authority, 42 F.3d 1, 9 (1st Cir. 1994); see also Stewart v. District of Columbia Armory, 863 F.2d 1013, 1017 (D.C. Cir. 1988) (“[T]he very fact that the government has restricted speech in the matter challenged in a forum case does not of its own weight demonstrate that the government did not intend to designate a public forum.”). Examination of the County practice with respect to its Community Centers leads to the inescapable conclusion that a designated public forum has been created.

     The federal circuits have likewise examined the policy and practice of governmental entities to find that the property was, despite the protests of the government, a designated public forum whose exclusion was subject to strict scrutiny. In fact, the Eleventh Circuit determined that an auditorium in a public housing project, with uses much like those at the Calvert County Community Centers, was a designated public forum whose access could be restricted by only content-neutral conditions for time, place, and manner. Crowder v. Housing Authority of City of Atlanta, 990 F.2d 585 (11th Cir. 1993). As the Supreme Court did in Widmar and Perry, the Eleventh Circuit looked at the actual practices of the housing project management governing use of the facility. It found that “[m]anagement opened the auditorium to a wide range of expressive activities, including ceramics classes, political speeches, and religious services. As a result, the auditorium corresponds to the university facilities held to be a public forum in Widmar.” 990 F.2d 586, 591 (11th Cir. 1993). In the case at bar, like the auditorium in Crowder, the County opens the Community Centers to a wide range of expressive activities, including activities similar to those desired by the Plaintiffs.

     After examining the practice of a public Community Center for seniors, the Tenth Circuit found that “the Bear Canyon Senior Center is a designated public forum.” Church on the Rock v. City of Albuquerque, 84 F.3d 1273, 1278 (10th Cir. 1996). In support of its conclusion, that court wrote:

It may not be classified as a traditional public forum because it is not a traditional location of public debate or assembly. It is, however, a place that has been opened to the public for discursive purposes. The City has permitted lectures and classes on a broad range of subjects by both members and non-members at its Senior Centers.

     Similarly, Calvert County has opened its Community Centers to a wide range of expressive activities by local individuals and organizations. It has also opened them up to lectures and classes, activities similar to the ones the home schoolers desire to engage in. The Calvert County Community Centers are clearly designated public fora.

 
C.
EXCLUSIONS FROM A DESIGNATED FORUM ARE SUBJECT TO STRICT SCRUTINY

     Because the County opens its facilities generally to the public, it must justify its exclusion of home schoolers by showing that it “is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” Widmar, 454 U.S. at 270. See also Perry, 460 U.S. at 45.

     The County has acted unconstitutionally because the home schooling events that Mrs. Goulart and Mrs. Travers desired to conduct at the school facilities met the standards of the County’s policy and practice for use of the Community Centers. Even if the two events were dissimilar to events allowed under the County’s policy and practice, the Constitution requires strict scrutiny of the County’s exclusions from a forum generally open to the public.

     The Fourth Circuit expressed the rule that government exclusions from a forum generally open to others requires strict scrutiny in Warren v. Fairfax County,196 F.3d 186, 190 (4th Cir. 1999):

First, is the “internal standard” — “if the government excludes a speaker who falls within the class to which a designated [limited] public forum is made generally available, its action is subject to strict scrutiny.” Ark. Educ. 523 U.S. at 677. That is, as regards the class for which the forum has been designated, a limited public forum is treated as a traditional public forum.

***

The second standard, the "external standard", places restrictions on the government's ability to designate the class for whose especial benefit the forum has been opened. The Supreme Court has not yet clearly stated what these external limitations are, except to say that once a limited forum has been created, entities of a "similar character" to those allowed access may not be excluded.

Warren v. Fairfax County, 196 F.3d 186, 193-194 (4th Cir. 1999).

     The Plaintiffs meet both the internal and external standards. First, the Plaintiffs meet the “external standard” because their proposed club meetings met the standards of the County’s policy and practice. The policy establishes the Community Centers as “a meeting place for community organizations.” The Plaintiffs met those requirements. Mrs. Goulart applied to hold a “geography club for kids” on behalf of the Chesapeake Home Educators.78 Both the geography club and the Chesapeake Home Educators are community organizations who desired to hold meetings there. The purposes of the geography club were for the children to learn geography, and play games about geography. Id.

     Similarly, Mrs. Travers’ fiber arts club was intended to teach young people “knitting, crocheting, spinning, weaving, etc.”79 She intended to instruct the students in various fiber arts techniques by demonstrating them to the students.80

     By practice, the County has allowed many other community organizations to meet for the purpose of teaching, instruction and learning. As enumerated above in the “Facts” section, the County has allowed young people and others to be trained in countless specialties, crafts, and skills.

     The County reaffirms that it has intended to open the Community Centers for teaching, instruction and other community uses by the County’s expansive list of courses offered on a wide variety of topics sponsored by the Parks and Recreation Department. The County has offered at the Community Centers classes on math tutoring, sewing, porcelain doll making, sign language for the deaf, drawing, scratch board art, pressed flower pictures, basket making, Russian language, crochet, knitting, guitar, cooking, oil painting, and many other courses.81 No matter how the County seeks to characterize these courses, it cannot deny that teachers are instructing students in these County-sponsored classes.

     Also, the fact that the County sponsors the classes does not detract from the fact that the County has allowed many non-County individuals and groups, with no County sponsorship, to teach classes and offer instruction to students.

     The Plaintiffs desired to engage in instruction, teaching and communication of ideas to students, all of which are expression protected by the First Amendment. See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972) and Pierce v. Society of Sisters, 268 U.S. 510, 534 (1925). The County permits instruction, teaching and communication of ideas at the Community Centers, by policy and practice.

     The County’s exclusion of the Plaintiffs’ speech is both content- and viewpoint-based discrimination. The County’s unwritten policy singles out instruction and teaching that advances home schooling or private education for exclusion from the forum, which is content-based discrimination in violation of Widmar. The County places an entire subject matter off-limits in its forum that is generally open to all other expression. The County will allow a geography club for young people, as long as it does not promote home schooling by fulfilling the legal requirements to home school in Maryland. The County will allow a fiber arts club, as long as it does not advance home schooling. The written Use Policy allows anyone to meet “to pursue fitness activities,” but the unwritten policy prohibits physical fitness for home schoolers or private schools. The County segregates these subject matter contents of home education and private education for exclusion from its forum.

     Similarly, the ban is viewpoint discriminatory in that the County allows classes for students in public schools which would be disallowed if offered to home schoolers. This violates the holdings of Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993) and Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995). For example, the County would deny access to home schoolers who desired to teach reading, but it currently permits reading instruction to be offered for other students.

     In the County’s mind, the key that triggers exclusion from the forum is promotion of home schooling. If the parents or children decide to engage in expressive activity that advances instruction via home schooling, the County excludes it.

     Even assuming that the home schooling instruction did not meet the policy and practice of the County, which is the “external standard” the Fourth Circuit mentioned in Warren, the County would have to show a compelling state interest to exclude home schooling from a forum generally open to everyone else. “[A]though a State may conduct business in private session, ‘[where] the State has opened a forum for direct citizen involvement,’ exclusions bear a heavy burden of justification,” Widmar, 454 U.S. at 273-274, quoting Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 555-559 (1975).

     The County has opened wide the doors of its Community Centers for use by the public. There is nothing “selective” about its Use Policy or its practice. The general availability of the centers demonstrated by policy and practice demands a compelling explanation for the exclusion of home instruction. What actually appears to have motivated this policy was the request of a private school to use the facility on a full-time basis. In an effort to appear even-handed, the County seems to think it needs to ban all private education. But this makes no more sense than banning all Lutherans from the Community Center if the private school happened to be Lutheran. The County, quite sensibly, could say that no organization would be allowed to use an entire facility for 40-50 hours a week. Whether the purpose was education, recreation, or politics, it wouldn’t matter. This whole lawsuit arises because the County has not learned to make relevant distinctions.

II.
THE COUNTY INTEREST TO STOP DUPLICATION OF SPENDING ON EDUCATION IS NOT COMPELLING AND NOT CONSISTENTLY FOLLOWED

     The County is wrong both factually and legally that it is “subsidizing” home schooling by allowing home school activities to take place at the Community Centers. The County offers as its central reason for denying access to home schoolers to use the Community Centers that it does not want to fund an additional educational method that complies with Maryland’s compulsory attendance law. Because the County pays for the county public school system and the Community Centers, the County reasons that it would be subsidizing home schoolers’ efforts to comply with Maryland’s compulsory attendance laws. In its letter to Plaintiffs’ attorney David Gordon dated November 30, 1999,82 the County Commissioners expressed their position this way:

The policy to which you object applies to all educational organizations, whether they are home schoolers, parochial schools or independent private schools. Community centers are designed and built to the recreational needs of the community at large. We do not want to devote space in the centers for elementary or secondary education. We are meeting those needs through our funding of the Calvert County Board of Education. We believe that allowing the centers to be used for formal education would amount to duplication of services.

     However, the County is in error both factually and legally that it financially “subsidizes” home schooling by allowing home school activities at the Community Centers. Factually, the County spends the same amount of tax money on the Community Centers whether home schoolers meet there or not, so no extra tax money gets spent to accommodate the home schoolers’ use of the Community Centers. See II.A. below. Constitutionally, the Supreme Court and other federal courts have ruled in the Establishment Clause context that the government does not “subsidize” a group simply because that group uses a facility generally open for everyone else in the community. See section II.C. below.

 
A.
THE COUNTY INCURS NO ADDITIONAL COSTS WHEN IT ALLOWS HOME SCHOOLERS TO MEET AT THE COMMUNITY CENTERS

     The County’s policy excluding home schooling from the Community Centers has no factual foundation because the County does not spend increased amounts of tax money on the Community Centers based on increased use of the centers for home schooling or any other purpose. Paul Meadows, the Division Chief of Parks and Recreation for Calvert County who oversees operation and budgeting for the Community Centers,83 stated that “[t]here’s no connection with the use as to how much money is budgeted.”84 The County budgets specific amounts for the operation of each Community Center based on their fixed costs, such as “[u]tilities, maintenance, upkeep [and] staff.”85 Importantly, the County does not change the amount budgeted for the Community Centers based on the number of people who use them.86

     Paul Meadows explained how the County budgets money for the Community Centers this way:

My assumption of the budgeting for the buildings is that you budget for the utility cost and the custodial cost and whatever the upkeep of the building is, period. It couldn’t have anything to do with how many people are using it or whatever.87

     This means that the County spends the same amount on the Community Centers whether they bustle with many activities or stand empty. The County charges no fee for groups or individuals to use the Community Centers for their meetings and activities, unless the applicant brings in food to be consumed in a carpeted area of the centers or requests to meet at a time outside of the center’s normal hours of operation.88 The County incurs no additional expenditures of tax revenue by permitting meetings for the fiber arts club or the geography club.

     The County cannot attribute any increased expenditures of tax money to the use of the Community Centers by home schoolers. Therefore, the factual premise for the County’s entire reason for excluding home schooling activities does not exist. There simply is no government subsidy of home schooling here.

 
B.
THE COUNTY ALLOWS OTHER “DUPLICATION OF FUNDING” TO TAKE PLACE AT THE COMMUNITY CENTERS

The County must implement its compelling state interest consistently; otherwise it is apparent that there is not truly a compelling state interest. There is no such thing as a part-time compelling governmental interest. The County only worries about duplication of services when private educators offer alternatives to the public schools. Any other “duplication” is acceptable.

Duplicative use of Community Centers by the County Libraries – The County library has its own meeting rooms.89 The County funds the County Library as an official governmental entity,90 yet the County allows the Library to use the Community Centers for Library activities.91 The Library offers courses at the Community Centers where students can learn how to weave or participate in a gingerbread workshop.92 The Library also sponsors large meetings at the Community Centers, such as puppet shows for children and other programs for larger groups.93 When the Library uses a Community Center, the County “pays twice,” yet it does nothing to stop this “duplicate” use of taxpayer funding that it claims is so important in the home schooling context.

Duplicative use of the Community Centers by the Public Schools - The County’s central argument in this case has been that because the County funds the local public schools, it cannot allow home schooling in the Community Centers. To do so would create duplicative funding of educational services to fulfill the state’s compulsory attendance law. Yet, the County spends money twice by allowing the public schools to use the Community Centers. Teachers from Calvert County public schools tutor children at the Community Centers.94 The public schools have used both the Northeast Community Center and the North Beach Community Center.95 The public school students might use the facility to rehearse a play or hold a basketball tournament.96 They may use it for a PTA meeting, a student council meeting, or a teachers association meeting.97 In fact, the Recreation Supervisor, Robert Tucker, who is in charge of all the recreation programming throughout the county for the Parks and Recreation Department, testified that he could not “think of any purpose for which the public schools may not use [his] facility.”98

Permitting home schoolers to take County classes at the Community Centers - The County does not stop home school students from signing up for various County-sponsored courses on Russian language studies, knitting, sports teams, etc., and then listing those classes on their portfolios to show compliance with Maryland’s laws on home schooling.99 For example, Kyle Travers’ daughter took an art class at the County library that was put on by a home school mom.100 She referenced the class in her portfolio. The County seems only concerned about privately-sponsored home school activities, but not home schoolers using County classes to fulfill their home school duties required by Maryland law.

 
C.
CONSTITUTIONALLY, GOVERNMENT DOES NOT “SUBSIDIZE” A PARTICULAR USER WHO UTILIZES A GOVERNMENT FACILITY OR SERVICE OPEN TO ALL

     Even if the County based its expenditures for the Community Centers on amount of use by the public, it could not constitutionally claim that it is “subsidizing” home schooling in particular over any other community groups who use the Community Centers. The Supreme Court and the Fourth Circuit have rejected parallel claims in the context of the Establishment Clause.

     In Fairfax Covenant Church v. Fairfax County School Board, 17 F.3d 703 (4th Cir. 1994), the Fairfax County, Virginia public schools charged churches greater rent to use its facilities during non-school hours than it charged secular community groups. The Fairfax County School Board defended its policy on the grounds that it would be “subsidizing” churches in violation of the Establishment Clause if churches paid the same rent as all other community groups. Because the churches were paying less to rent school buildings than they would pay to rent available commercial space, the school board concluded it was subsidizing churches. The Fourth Circuit ruled that there was no subsidy of religion here because the school board had opened its schools widely for use by the entire community. The Fourth Circuit pointed to Widmar v. Vincent, 454 U.S. 263 (1981) for precedent:

Moreover, the Supreme Court in Widmar rejected these very arguments [about subsidizing speakers because they use a designated forum] in circumstances completely analogous to those presently under consideration. In holding that the costs of maintaining a public forum do not advance the views and beliefs of those using the forum, the Supreme Court rejected the applicability of Tilton to these circumstances.

Fairfax Covenant Church, 17 F.3d at 708. In other words, simply because the government maintains a building and pays for its operational costs does not mean it is giving financial aid to a church that happens to meet there on the same terms and conditions as everyone else.

     That reasoning applies here. The County does not subsidize any one particular user of its Community Centers, but simply funds the costs of operating them. If the County is correct, then it is financially aiding every group and individual that meets in a Community Center for expressive purposes, including those churches that meet for worship in the Community Centers.

     The Supreme Court has repeatedly rejected the argument that the government unconstitutionally subsidizes a religious group in violation of the Establishment Clause when it participates in a program the government makes generally available to all. See Mueller v. Allen, 463 U.S. 388 (1983); Witters v. Washington Department of Services for the Blind, 474 U.S. 481 (1986) and Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993):

We have never said that “religious institutions are disabled by the First Amendment from participating in publicly sponsored social welfare programs.” Bowen v. Kendrick, 487 U.S. 589, 609 (1988). For if the Establishment Clause did bar religious groups from receiving general government benefits, then “a church could not be protected by the police and fire departments, or have its public sidewalk kept in repair.” Widmar v. Vincent, 454 U.S. 263, 274-275 (1981) (internal quotation marks omitted). Given that a contrary rule would lead to such absurd results, we have consistently held that government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge just because sectarian institutions may also receive an attenuated financial benefit. Nowhere have we stated this principle more clearly than in Mueller v. Allen, 463 U.S. 388 (1983), and Witters v. Washington Dept. of Services for Blind, 474 U.S. 481 (1986), two cases dealing specifically with government programs offering general educational assistance.

Zobrest, 509 U.S. at 9. Therefore, just as in the Establishment Clause context the government does not subsidize a religious group when it uses a governmental benefit generally available to everyone else, so Calvert County does not subsidize home schooling by allowing them to use the Community Centers that are generally open to the public.

 
D.
THE COUNTY’S REAL MOTIVATION MAY BE COMPELLING, BUT IT CAN BE ACHIEVED THROUGH A LESS RESTRICTIVE ALTERNATIVE

     Even if the county has a compelling governmental interest, it must also prove that its objectives are being accomplished in the least restrictive means possible. Strict scrutiny means that a governmental burden on a fundamental right will only be upheld if it is the "least restrictive means" to achieve a "compelling interest of the State." See, e.g., Bernal v. Fainter, 467 U.S. 216, 220 (1984); Carey v. Brown, 447 U.S. 455 (1980); Police Dep't of Chicago v. Mosley, 408 U.S. 92 (1972).

     The record seems clear that the County's original interest was the desire to keep a private school from setting up a full?time operation that would dominate one of its facilities.101 In a memo dated Sept. 9, 1994, Defendant Meadows explained his reasoning for rejecting the application of the Benjamin Franklin Academy. He noted his concerns about using up the available space:

If the school enrollment grows the request may come for more space. If the program does not grow to the point where they can construct their own facility but the numbers support continued use of Mt. Hope Community Center this could easily become a permanent arrangement. Either situation restricts community and recreational use.102

     This is an important and appropriate interest, but it has been taken care of by much less restrictive means than a complete ban on home and private school activities. The written policy now expressly limits usage to a period not to exceed two hours and a frequency not to exceed once per week.103 With this policy on the books, no one group can take over the whole Community Center.

     Because this limitation applies equally to all groups, regardless of what they do or say at the Community Center, it is merely a time, place, and manner limitation that does not trigger any special constitutional scrutiny. This content?neutral restriction completely takes care of the County's legitimate interest in keeping a private school from taking over the entire Community Center.

     The Meadows memo suggests another possible governmental interest, however. The final paragraph says:

Finally, the County makes a tremendous financial contribution to the Board of Education and parks and Recreation has a very close working relationship with the board of Education. Allowing a private, non-accredited school to operate in our facility sends the wrong message to the Board of Education.104

Defendant Meadows explained his thinking at his deposition:

Q: What was the wrong message that you thought would be sent?

A: Well, essentially that – I know there's a lot of – it's budget time. There's a lot of animosity at times between the Board of Education and the Board of County Commissioners when it comes to funding. And the Board of Education never gets as much funding from the Board of County Commissioners that it would like to have for the education.

I guess in my head, on the one hand the Board is – the Board of County Commissioners is giving the Board of Education X amount of money to work with and then turns around on the other side and kind of says now we're not going to give you the extra couple hundred thousand that you wanted, whatever, but oh, by the way, we'll give another educational organization a facility to operate in.105

     Suppose, for the sake of argument, that the County's real interest was simply to avoid offending members of the Board of Education. If that was the government's interest, then the current policy would make perfect sense. The current policy is "narrowly tailored" to avoid "sending the wrong message" to the Board of Education. Every time the public schools want to use the Community Center for educational activities, the County says "yes." Every time some competitor wants to use the Community Center for educational activities, the County says "no." Under this hypothesis, it would be fine for a home schooler to use the Community Center for educational activities, as long as the Board of Education didn't notice.

     The County never argues that their policy was designed to appease the Board of Education, nor should they. No American court has ever held that a government has a compelling interest in appeasing politically powerful people. For that matter, no American court has ever held that a government even has a legitimate interest in this respect. Political pressures (especially at budget time) are an inevitable reality for every government official, but they can never be used to justify a policy of exclusion like this.

III.
THE COUNTY POLICY TO EXCLUDE HOME SCHOOLERS FROM COMMUNITY CENTER USE VIOLATES THE EQUAL PROTECTION CLAUSE

     This case presents a clear-cut violation of the Free Speech Clause of the First Amendment, but the policy would be unconstitutional even if no expressive activity were involved. The County cannot treat one small group of people differently just because they have chosen to exercise a fundamental right. The County could not set up separate water fountains for home schoolers, even though there is no "expressive activity" involved in getting a drink. The County's policy of exclusion cannot be justified unless it can show that (1) it has a compelling interest at stake, and (2) discrimination against private educational activities is the least restrictive means to serve that interest.

     There is no dispute as to whether the County discriminates against home and private schoolers. The only debate is whether this discrimination is constitutional. In most cases, that depends on the degree of scrutiny to be applied, which depends, in turn, on the nature of the right that is being burdened. In this case, however, the County's policy cannot survive any level of scrutiny.

     The lowest level of scrutiny applies when the government discriminates on a basis that does not implicate any suspect class, quasi-suspect class, or fundamental right. In such a case, the only question is whether the government's action is rationally related to a legitimate governmental interest. This is known as "rational basis review," and generally applies to economic activity. Thus, for example, in a tax case, the Supreme Court wrote: “[T]he Equal Protection Clause is satisfied so long as there is a plausible policy reason for the classification Y and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational.” Nordlinger v. Hahn, 505 U.S. 1, 11 (1992).

     The only "policy reason" that Calvert County has offered in defense of its discriminatory action is to avoid “duplication of services” that the County is providing “through our funding of the Calvert County Board of Education.”106 As we have noted above, "duplication of services" does not mean "spending more money." It simply means that educational options that are already available to public school students at the public schools and at the Community Centers would now also be available to private and home schooled students at the Community Centers. In practice, then, "avoiding duplication of services" seems to be identical to "avoiding unwanted competition from private schools." This is an understandable basis, but not a legitimate basis, for excluding one small group of citizens from the use of public facilities. The County could not set up separate water fountains for home and private schoolers just because it wanted to avoid competition with the public schools. It cannot keep them from holding classes on that basis, either.

     The County has never said that its real interest is in shutting out competition from private and home schools, but it is hard to discern any other interest that is actually being served by the current policy. The County has no problem with duplication of library services, or public school services, or other educational services. The County acts as if more education was a good thing, not a bad thing – as long as it is public education. Even at the lowest level of scrutiny, the County must show that its policy is rationally related to some legitimate governmental interest. The County has yet to offer any legitimate governmental interest for a policy that welcomes public educational activities but prohibits private educational activities.

     Rational basis review is not appropriate when the government singles out one group of people because they have chosen to exercise a constitutionally protected fundamental right. Courts apply "strict scrutiny" in these cases. When a state burdens a fundamental right "we cannot countenance such treatment unless the State asserts a counterbalancing interest of compelling importance that it cannot achieve" otherwise. Minnesota Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575, 585 (1983).

     Speech is a fundamental right, so the expressive activity in this case is enough to justify strict scrutiny, in and of itself. Whenever the government distinguish between forms of expressive activity, as it does here, the Free Speech Clause and the Equal Protection Clause mandate the same result. In Police Department v. Mosley, 408 U.S. 92 (1972), the Supreme Court ruled that content-based restrictions of free speech violate the Equal Protection Clause. The unconstitutional ordinance in Mosley “describe[d] permissible picketing in terms of its subject matter,” 408 U.S. at 95. Mosley dealt with a content-based ban on speech, as we have here:

Necessarily, then, under the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. And it may not select which issues are worth discussing or debating in public facilities. There is an “equality of status in the field of ideas,” and government must afford all points of view an equal opportunity to be heard. Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say. Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone.

Mosley, 408 U.S. at 96. (Emphasis added). See also Carey v. Brown, 447 U.S. 455 (1980).

     Independent of the Free Speech issues, however, the County also discriminates against parents who have chosen non-public education. Though home school students are not a suspect classification, strict scrutiny should apply because the County policy infringes on the fundamental right of parents to direct the education of their children:

The liberty interest at issue in this case — the interest of parents in the care, custody, and control of their children — is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago, in Meyer v. Nebraska, 262 U.S. 390, 399, 401 (1923), we held that the “liberty” protected by the Due Process Clause includes the right of parents to “establish a home and bring up children” and “to control the education of their own.” Two years later, in Pierce v. Society of Sisters, 268 U.S. 534-535 (1925), we again held that the “liberty of parents and guardians” includes the right “to direct the upbringing and education of children under their control.”

Troxel v. Granville, 530 U.S. 57 at 65; 120 S. Ct. 2054 at 2060 (2000).

     The County does not have the constitutional power to ban private education because parents have a fundamental right at stake. When Oregon tried to require every child to attend public schools just after the First World War, the Supreme Court concluded that it had violated the Fourteenth Amendment's Due Process Clause. Pierce v. Society of Sisters, 268 U.S. 510 (1925).

     Calvert County has not tried to ban home education the way that Oregon tried to ban private education. It just wants to burden it. But the same constitutional rules that keep a government from banning the exercise of a fundamental right prevent it from conditioning public benefits on the forfeiture of that right:

The recipient of a government benefit, be it a tax exemption, unemployment compensation, public employment, a license to practice law, or a home in a public housing project, cannot be made to forfeit the benefit because he exercises a constitutional right.

Thorpe v. Housing Authority of Durham, 386 U.S. 670, 679 (1967) (Douglas, J., concurring).

     To permit conditional use of the Community Centers upon the absence of home education would allow the government to "produce a result which [it] could not command directly." Speiser v. Randall, 357 U.S. 513, 526 (1958). "Such interference with constitutional rights is impermissible." Perry v. Sinderman, 408 U.S. 593, 597 (1972).

     Because the County discriminates between speakers and burdens parental liberties, this Court cannot stop with rational basis review. It must apply strict scrutiny: the compelling interest/least restrictive means test. Only those governmental interests that are "of the highest order and not otherwise served" can hope to pass the compelling interest test. Wisconsin v. Yoder, 406 U.S. 205, 215 (1972). The avoidance of duplication of funds — the only government interest articulated here — is certainly not sufficient to subordinate all other legitimate interests. Id.

     The County's policy cannot survive strict scrutiny analysis, because the asserted interest (avoiding duplication) falls far short of "compelling" and the means it has used (banning home and private school activities while permitting public school activities) is hardly the "least restrictive." The County cannot even survive rational basis review: the proposed use of this space would not cost the taxpayers one extra cent, nor would it have any negative impact on the county or the public schools.

By policy and practice the county permits individuals and organizations to use its Community Centers for a broad array of expressive activities. A designated public form has been created, which means that strict scrutiny applies to the exclusion. It is apparent that home schooling is essentially the only harmless lawful activity prohibited at the centers. The County’s exclusion of home schooling is an unconstitutional content-based and viewpoint-based exclusion from a designated public forum. The County lacks a compelling interest to justify this infringement on the Plaintiffs’ First Amendment rights, and upon its Fourteenth Amendment right to direct the education of their children. This Court should grant the Plaintiffs’ motion for summary judgment and declare the exclusion of home schoolers from Calvert County Community Centers to be unconstitutional.

 

Respectfully submitted,

LYDIA GOULART and KYLE TRAVERS

   
Dated: March 30, 2001

By:                                                                            

MICHAEL P. FARRIS (D.C. Bar No. 385969)
DAVID E. GORDON (Va. Bar No. 38034)
Home School Legal Defense Association
Post Office Box 3000
Purcellville, Virginia 20134
(540) 338-5600

JORDAN LORENCE (Va. Bar No. 33655)
Northstar Legal Center
P.O. Box 2074
Fairfax, VA 22031
(703) 359-8619

MATTHEW PAAVOLA (Md. U.S. Dist Court No. 2452)
Attorney at Law
2113 Orems Road
Baltimore, MD 21220
(410) 574-8000

Attorneys for Plaintiffs

CERTIFICATE OF SERVICE

     I, Scott W. Somerville, an attorney with the Home School Legal Defense Association, do hereby certify that the Memorandum in Support of Plaintiffs’ Motion for Summary Judgment and the accompanying Appendix were served upon opposing counsel by U.S. Mail, postage paid, this 30th day of March, 2001, at the following address:

Daniel Karp, Esq.
Allen, Johnson, Alexander & Karp, P.A.
100 E. Pratt St., Suite 1540
Baltimore, MD 21202
(410) 727-5000

 

                                                                           
SCOTT W. SOMERVILLE, ESQ.


1 Dep. of Paul Meadows at 8:13-17; App. at 1.

2 Dep. of Paul Meadows at 8:21-22 to 9:1; App. at 1.

3 App. at 2.

4 App. at 3.

5 Dep. of Paul Meadows at 73:19 to 74:7; App. at 1.

6 Dep. of Paul Meadows at 52: 10-22; App. at 1.

7 App. at 4-6 and Dep. of Paul Meadows at 51:17 to 52:9; App. at 1.

8 App. at 7.

9 App. at 8 and Dep. of Paul Meadows at 74: 8-13; App. at 1.

10 App. at 9 and Dep. of Paul Meadows at 79:17; App. at 1.

11 App. at 10.

12 App. at 11 and Dep. of Paul Meadows at 82:2-4; App. at 1.

13 App. at 12.

14 App. at 13.

15 App. at 14.

16 App. at 15.

17 Dep. of Paul Meadows at 76: 5 to 77:7; App. at 1.

18 App. at 16.

19 App. at 17.

20 App. at 18.

21 App. at 19.

22 App. of 20 and Dep. of Paul Meadows 82:5-9; App. at 1.

23 App. at 21.

24 App. at 22 and Dep. of Paul Meadows at 57:10-19; App. at 1.

25 Dep. of Paul Meadows at 50: 15-18; App. at 1.

26 Dep. of Paul Meadows at 51:9-16; App. at 1.

27 App. at 23.

28 App. at 24.

29 App. at 25 and Dep. of Paul Meadows 82:10-22; App. at 1.

30 App. at 26.

31 App. at 27 and Dep. of Paul Meadows 83:14-19; App. at 1.

32 App. at 28.

33 App. at 29 and Dep. of Paul Meadows at 84:1-9; App. at 1.

34 App. at 30 and Dep. of Paul Meadows at 81:1-3; App. at 1.

35 App. at 31.

36 App. at 32 and Dep. of Paul Meadows 38:1-11; App. at 1.

37 App. at 33 and Dep. of Paul Meadows at 68:14-18; App. at 1.

38 App. at 34.

39 App. at 35.

40 Dep. of Paul Meadows at 35:11 to 36:19; App. at 1. This is conducted by the teachers from the Calvert County school district.

41 App. at 36 and Dep. of Paul Meadows at 85:5 to 86:15; App. at 1.

42 App. at 2.

43 Id.

44 Id.

45 Addendum No. 1 to Use Policy; App. at 2.

46 Dep. of Doris Holland at 15:6-12; App. at 37. Dep. of Mary Lou Johnson at 38:11-16; App. at 38. According to Doris Holland, cheerleading is prohibited because of past instances of damage to the facility.

47 Dep. of Paul Meadows at 55:10-11; App. at 1.

48 Dep. of Paul Meadows at 24:1-19; App. at 1.

49 Dep. of Paul Meadows at 55:10-11; App. at 1.

50 Dep. of Paul Meadows at 68:3-6; App. at 1.

51 App. at 39 and Dep. of Paul Meadows at 26:10-14; App. at 1.

52 Id.

53 App. at 40 and Dep. of Paul Meadows at 25:22 to 26:8; App. at 1.

54 App. at 41.

55 Dep. of Lydia Goulart at 16:6-23:22; App. at 42

56 Dep. of Lydia Goulart at 10: 18-20; App. at 42.

57 Dep. of Lydia Goulart at 16:6 to 18:3; App. at 42.

58 Dep. of Lydia Goulart at 21:2 to 22:20; App. at 42.

59 Dep. of Lydia Goulart at 23: 6 to 24:10; App. at 42.

60 App. at 43 and Dep. of Lydia Goulart at 24:13 to 26:5; App. at 42.

61 Dep. of Lydia Goulart at 30:3-10; App. at 42.

62 Dep. of Lydia Goulart at 32: 4-11; App. at 42. Dep. of Mary Lou Johnson at 76:21 to 77:10; App. at 38.

63 Dep. of Lydia Goulart at 15:7-21 and 58:14-22; App. at 42. Home schooling in Maryland is governed primarily by Md. Regs. Code title 13A. Parents are required to provide "regular, thorough instruction in studies usually taught in the public schools to children of the same age," including "English, math, science, social studies, art, music, health, and physical education." Md. Regs. Code title 13A 10.01(C)(a). According to these regulations, parents may elect supervision by the public school superintendent or a "school or institution offering an educational program operated by a bona-fide church organization." Md. Regs. Code title 13A 10.05(A). As a part of the supervision, parents must maintain a portfolio for periodic review. The portfolio should include "relevant materials such as instructional materials, reading materials, and examples of the child's writings, work sheets, workbooks, creative materials, and tests." Md. Regs. Code title 13A 10.01(F).

64 Dep. of Kyle Travers at 7:18 to 8:9; App. at 44.

65 Dep. of Kyle Travers at 7:3-14; App. at 44.

66 Dep. of Kyle Travers at 10:16 to 11:11; App. at 44.

67 Dep. of Kyle Travers at 11:12 to 12:18; App. at 44.

68 App. at 45 and Dep. of Kyle Travers at 23:17 to 24:19; App. at 44.

69 Dep. of Kyle Travers at 18:1 to 20:6; App. at 44.

70 Id.

71 App. at 46 and Dep. of Kyle Travers at 27:11-15; App. at 44.

72 Dep. of Mary Lou Johnson at 56:3 to 62:11; App. at 38.

73 Id.

74 Although we use the popular term "home schooling" throughout, Maryland law merely requires parents to ensure that a child who is not in public or private school is "otherwise receiving regular, thorough instruction during the school year in the studies usually taught in the public schools to children of the same age." Md. Educ. Code 7-301(a). There is no requirement that this instruction be provided by the parent or be provided in the home.

75 App. at 2.

76 Id.

77 App. at 3.

78 App. at 43.

79 App. at 45.

80 Dep. of Kyle Travers at 18:1 to 20:6; App. at 44.

81 App. at 36 and Dep. of Paul Meadows at 85:5 to 86:15; App. at 1.

82 App. at 48.

83 Dep. of Paul Meadows at 5:14; App. at 1.

84 Dep. of Paul Meadows at 106:17-18; App. at 1.

85 Dep. of Paul Meadows 106:4-5; App. at 1.

86 Dep. of Paul Meadows 106:17-18; App. at 1.

87 Dep. of Paul Meadows 105:11-16; App. at 1.

88 Dep. of Paul Meadows at 11:3-15; App. at 1.

89 Dep. of M. Johnson at 15:6-15; App. at 38.

90 Dep. of Paul Meadows at 51:9-16; App. at 1.

91 Dep. of M. Johnson at 15:6-15; App. at 38.

92 App. at 22 and Dep. of Paul Meadows at 57:10-19; App. at 1.

93 Dep. of Paul Meadows at 50:15-18; App. at 1.

94 Dep. of Paul Meadows at 35:11 to 36:19; App. at 1.

95 Dep. of M. Johnson at 19:20-21:19; App. at 38.

96 Id.

97 Dep. of R. Tucker at 24:14-25:2; App. at 47.

98 Id. at 26:2-6; App. at 47.

99 Dep. of Tucker at 21:2 to 24:9; App. at 47.

100 Dep. of Travers at 13:12 to 14:8; App. at 44.

101 App. at 39 and Dep. of Paul Meadows at 26: 10?14; App. at 1.

102 App. at 40.

103 App. at 2.

104 App. at 40.

105 Dep. of Paul Meadows at 30: 12-31: 6, App. at 1.

106 App. at 48.

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