Kim v Howard

No. 22-2294

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Lisa M.F. Kim, et al.,

v.

Plaintiffs-Appellants,

Board of Education of Howard County

Defendant-Appellee.

On Appeal from the United States District Court for the District of Maryland

Case 1:21-cv-00655-DKC

BRIEF OF YOUNG AMERICA’S FOUNDATION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFSAPPELLANTS AND REVERSAL

J. William Eshelman (Virginia Bar No. 17583)

Clark Hill PLC

1001 Pennsylvania Ave NW, Suite 1300 South

Washington, DC, 20004

202-552-2374 (T)

202-572-8692 (F)

weshelman@clarkhill.com

Counsel for Amicus Curiae

May 15, 2023

DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER ENTITIES WITH A DIRECT FINANCIAL INTEREST

Under Federal Rule of Appellate Procedure 26.1 and Local Rules

26.1(a)(2)(A) and (a)(2)(C), Young America’s Foundation (“YAF”) makes the following disclosures:

1. YAF is not a publicly held corporation.

2. YAF does not have any parent corporation.

3. No publicly held corporation holds 10% or more of its stock.

4. YAF is unaware of any publicly held corporation or similarly situated legal entity that has a direct financial interest in the outcome of the litigation by reason of a franchise, lease, other profit-sharing agreement, insurance, or indemnity agreement.

TABLE OF AUTHORITIES

AMICUS CURIAE’S IDENTITY, INTEREST, AND AUTHORITY TO FILE1

Young America’s Foundation (“YAF”) is a national non-profit organization committed to ensuring that increasing numbers of young Americans understand and are inspired by the ideas of individual freedom, a strong national defense, free enterprise, and traditional values. Young Americans for Freedom (“YAF Freedom”) is YAF’s chapter affiliate on high school and college campuses across the country.

YAF shows this commitment on campuses throughout the country by sponsoring campus lectures and other activities that are often very well-attended events each school year. YAF’s advocacy for free speech and traditional ideas on college campuses regularly results in a degree of conflict with administrators and, in some instances, student government leaders who disagree with the traditional content of YAF’s messages. Sometimes, school administrators and student governments articulate or tacitly express concern about expression of these traditional values, and even the mere existence of a YAF chapter, and attempt to deny chapters club status or access to funds.

1 No counsel for any party authored this brief in whole or in part. No party or party’s counsel contributed money that was intended to fund preparing or submitting the brief. No person other than the amicus curiae, its members, or its counsel, made any monetary contribution to fund the preparation or submission of this brief.

YAF is concerned about the palpable erosion of the diverse viewpoints commonly associated with academic freedom for the last several centuries as well as freedom of speech (the sine qua non of functioning democratic institutions). Moreover, YAF bears a deep concern for the denigration of the religious freedom that currently is fashionable in academic institutions across the country. Religious freedom is a peculiar American innovation that has successfully informed the education of traditional values in American classrooms since the Founding. Thus, by virtue of its consistently followed mission, YAF has a significant (non-trivial) interest in ensuring that where school boards give students a voice, those school boards cannot purposefully limit disfavored viewpoints or amplify other favored viewpoints. Consequently, YAF routinely joins amicus briefs in cases where school boards and administrators seek to unconstitutionally misuse their authority in Free Speech cases. For example, YAF recently filed an amicus brief in the 11th Circuit Court of Appeals in Moms for LibertyBrevard Cnty. v. Brevard Pub. Schs., No. 22-10297 (11th Cir. Nov. 21, 2022), a case in which a school board censored disfavored speech at a public meeting by denying a parent the right simply to speak.

YAF also has an interest in protecting the traditional values of the republican form of government. Accordingly, YAF regularly works with YAF Freedom members on campuses to ensure that student governance, student government, and administrators of student activities hear all students’ voices and viewpoints. YAF does this by supporting peaceful student activism, petitioning officials in writing, and actively collaborating with elected officials where appropriate. YAF has thus become a recognized, valuable advocate of these values.

SUMMARY OF ARGUMENT

The district court held that the one-person, one-vote principle does not apply to the Howard County Board of Education’s Student Member selection process. In attempting to avoid applying that venerable principle, the district court opines that the principle applies only to a state or local government’s selection process where the state or local government itself chooses to hold a popular election. This position is plainly erroneous and without foundation in law or precedent.

First, the district court neglects the question of what the Constitution requires. By eliding this key step in its analysis, the district court turns the Supreme Court’s holdings on their head, depriving them of their intended power to bind state or local government selection processes to Constitutional requirements.

Second, the district court misstates the law. No Supreme Court case holds unequivocally that Equal Protection only applies when a state or local government chooses to hold a popular election.

Third, the decision below subjects American students solely to viewpoints and orthodoxies that happen to be favored by school boards and administrators. The district court’s holding would and does license

state and local legislative bodies including all school boards to legislate without concern for the students and citizens they govern.

This Court should vacate and reverse the district court’s decision, remanding it with instructions to apply Equal Protection principles.

ARGUMENT

I. The district court neglects the question of when the Constitution requires a government body to hold a popular election.

The district court neglects to treat when and under what circumstances the Constitution requires a governmental unit such as the Howard County Board of Education (Board) to hold a popular election.

The Supreme Court addressed this question in Sailors v. Bd. of Ed. of Kent Cnty., 387 U.S. 105 (1967) The Sailors Court strongly indicates that the Constitutional “default position” is that legislative bodies hold popular elections. Given the Board’s routine legislative roles, under the established Supreme Court precedents, the district court should have required application of the Fourteenth Amendment’s Equal Protection guarantee of one-person, one-vote in the Board’s Student Member selection process.

The district court, however, failed to recognize a strong inference in Sailors; namely that Sailors governmental bodies routinely possessing

legislative functions should select members by popular election rather than appointment. Instead, the district court finds Sailors, without any degree of significant analysis, to hold that so long as a government body’s selection process is “basically appointive, rather than elective”, it is exempt from the Constitutional guarantee of equal representation. See Memo. Op. at 9-12. The district court’s truncated treatment misstates the Sailors holding as it was more fully developed by the Court, as discussed more fully below. In Sailors, the Supreme Court specifically said that it did “not decide at the present time whether a State may constitute a local legislative body through the appointive, rather than the elective, process”. Sailors, 387 U.S. at 110. Thus, Sailors gives rise to the threshold question of when the Constitution permits a local legislative body, as opposed to an administrative body, to choose an exclusively appointive process rather than by popular election. The Supreme Court case of Hadley v. Junior Coll. Dist. of Metro. Kan. City involved the threshold question of when the Constitution requires a governmental body to hold a popular election. 397 U.S. 50 (1970). Only by a surface reading, Hadley appears to hold that application of Equal Protection requirements to a government’s selection process is required only when the government itself decides, without

more, to hold a popular election. A close reading of Hadley, however, makes clear that the matter is not that simple.

In Hadley the Court states matters this way, “[W]here a State chooses to select members of an official body by appointment, rather than [by] election, and that choice does not itself offend the Constitution, the fact that each official does not ‘represent’ the same number of people does not deny those people equal protection of the laws.” Id. at 58 (emphasis added), citing its previous decision in Sailors, 387 U.S. at 105. Thus, Hadley supports the view that the district court plainly failed to address each constitutionally required element regarding Equal Protection and popular elections.

Therefore, the district court law applied is mistaken The district court simply elided the Supreme Court’s full development of Equal Protection requirements regarding when and under what circumstances the Constitution requires a government hold a popular election, as more fully set forth below. The district court therefore erroneously concluded that Equal Protection principles did not apply to the Board’s Student Member selection process. The district court’s errors start with Sailors.

II. The district court misreads Sailors.

The district court’s decision misreads Sailors. It missed the fuller development of Sailors contained in two decisions closely following it in time In failing to come to grips with that more fulsome development, the district court erroneously concluded that Equal Protection applies “only when the state chooses to fill that seat through a ‘popular election’” . The district court therefore found Equal Protection principles not to apply to the Board’s Student Member selection process. Memo. Op. at 8, citing Hadley, 397 U.S. at 56.

The district court derives its erroneous understanding of the rule from two Supreme Court cases. First, the district court interprets Sailors as holding that the Constitution’s Equal Protection principles do not confer a right to vote for ‘local officers’, such as county school board members. Memo. Op. at 8, citing Sailors, 387 U.S. at 108. The district court then misreads Hadley as authority for a “choice” exception (completely missing the quoted language above, and) concludes that Equal Protection applies “only when the state chooses to fill that seat through a ‘popular election’”. Memo. Op. at 8, citing Hadley, 397 U.S. at 56. This conclusion compounds the district court’s errors.

The district court’s understanding of the law begins with a misreading of both the Sailors and Hadley decisions It also misses the

holding in Avery v. Midland Cnty., 390 U.S. 474, 485 (1968), where the Supreme Court clarifies its holdings in this line of decisions. In Avery, the Court observed that its earlier decision in Sailors “rested on the administrative nature of the area school board’s functions and the essentially appointive form of the scheme employed [in that circumstance].” Id. at 485. Avery itself stated the general principle that “[t]he actions of local government are the actions of the state” and that “when the State delegates law-making [legislative] power to local government and provides for the election of local officials from districts specified by statute, ordinance, or local charter, it must insure that those qualified to vote have the right to an equally effective voice in the election process”. Id. at 480. Thus, when taken together, Sailors and Avery do not establish the proposition as the district court stated it. Instead, when taken together, those Supreme Court cases affirm that Equal Protection requirements apply to all local government units, regardless of level, unless the local government unit (1) does lacks legislative or general governmental powers over an entire geographic area, and (2) its functions are purely administrative in nature.

Thus, the district court’s holding that the Equal Protection principle of one-person, one-vote principles does not apply to the

Board’s Student Member selection process relies on an erroneous understanding of the Sailors, Hadley and Avery line of decisions.

III. The district court empowers school administrators to suppress viewpoints contrary to their preferences without any concern for judicial review.

Finally, the district court’s ruling allows administrators of schools and universities affirmatively to exclude and silence any competing viewpoints without concern to the great educational detriment of untold numbers of students. Such administrators are sometimes (or even often) popularly perceived as regularly discriminating against students and organizations whose viewpoints the administrators disfavor. Under the district court’s decision, administrators of government-funded schools may discriminate without concern for Constitutional principles. In practical effect, the decision empowers school administrators (and the Board) to handpick student members solely on basis of congenial viewpoints. The decision places the school board beyond any serious concern of constitutional review one might even could say it functionally empowers viewpoint discrimination. This Court should not allow the possibility of licensing viewpoint discrimination on school and university campuses, the very

places where viewpoints are increasingly monolithic and drive school policies.

This is not fanciful. When unfettered, school or university administrators can ensure that only their favored viewpoints are given expression. That was the very situation in 2018, when YAF was compelled to file and successfully resolve a suit against Kennesaw State University. See Verified Compl., Young Ams. for Freedom of Kennesaw State Univ. v. Harmon, No. 1:18-cv-00956-TWT (N.D. Ga. Mar. 5, 2018). In that case, the administrators of Kennesaw State University provided free security to a Black Lives Matter (“BLM”) student group, even officially joining a BLM event, while charging the YAF chapter hundreds of dollars for a small speaking event at the same time Similarly, that same year, YAF was compelled to file suit and ultimately successfully resolve a case with the University of Florida (“UF”) See Verified Compl., Young Ams. for Freedom at Univ. of Florida v. Fuchs, No. 1:18-cv-00250-MW-GRJ (N.D. Fl. Dec. 21, 2018). The student government at UF had power over club funding and undertook to use that power to exclude UF YAF from access to funds based on its traditional values viewpoint. At the same time, UF

continued to fund other groups having viewpoints that were ideologically agreeable to it.

It is surpassingly important that school board members be accountable to an electorate that includes all stakeholders. School curricula and administration currently have become an increasingly political issue in this country. For example, YAF recently joined an amicus brief arguing against a school district’s policies that would allow school employees secret to make and implement often irreversible, always life-altering decisions for children, completely without parental knowledge. See Brief for Advancing American Freedom, Inc., Parents

Defending Education v. Linn-Marr Community School Dist., No. 222927 (8th Cir. Nov. 10, 2022)

School administrators individuals who are neither elected nor appointed to represent county districts, school students, or parents should be fully accountable to an electorate, not autonomous The district court’s decision only emboldens school administrators inclined to an activist viewpoint discrimination.

CONCLUSION

For these reasons, this Court should reverse the judgment below, remand the case with instructions, and allow Plaintiffs’ case to proceed.

Dated: May 15, 2023

Respectfully submitted,

/s/ J. William Eshelman

J. William Eshelman (Virginia Bar No. 17583)

Clark Hill PLC

1001 Pennsylvania Ave NW, Suite 1300 South

Washington, DC, 20004

202-552-2374 (T)

202-572-8692 (F)

weshelman@clarkhill.com

Counsel for Amicus Curiae

YOUNG AMERICA’S FOUNDATION

CERTIFICATE OF COMPLIANCE

Under Federal Rule of Appellate Procedure 29(a)(4)(g), I certify that:

This brief complies with Rule 29(a)(5)’s type-volume limitation because it contains 2156 words, as determined by the Microsoft Word word-processing system used to prepare the brief, excluding the parts of the brief exempted by Rule 32(f).

This brief complies with Rule 32(a)(5)’s typeface requirements and Rule 32(a)(6)’s type-style requirements because it has been prepared in a proportionately spaced typeface using the 2013 version of Microsoft Word in 14-point Times New Roman font.

/s/ J. William Eshelman J. William Eshelman

CERTIFICATE OF SERVICE

I certify that I caused this document to be electronically filed with the Clerk of the Court using the appellate CM/ECF system on May 15, 2023. All participants in the case are registered CM/ECF users and service will be accomplished by the appellate CM/ECF system.

/s/J. William Eshelman

J. William Eshelman

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT APPEARANCE OF COUNSEL FORM

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22-2294

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UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT DISCLOSURE STATEMENT

• In civil, agency, bankruptcy, and mandamus cases, a disclosure statement must be filed by all parties, with the following exceptions: (1) the United States is not required to file a disclosure statement; (2) an indigent party is not required to file a disclosure statement; and (3) a state or local government is not required to file a disclosure statement in pro se cases. (All parties to the action in the district court are considered parties to a mandamus case.)

• In criminal and post-conviction cases, a corporate defendant must file a disclosure statement.

• In criminal cases, the United States must file a disclosure statement if there was an organizational victim of the alleged criminal activity. (See question 7.)

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• Counsel has a continuing duty to update the disclosure statement.

No. __ Caption: ___________________________________________

Pursuant to FRAP 26.1 and Local Rule 26.1,

(name of party/amicus)

who is ____________ _, makes the following disclosure: (appellant/appellee/petitioner/respondent/amicus/intervenor)

1. Is party/amicus a publicly held corporation or other publicly held entity? YES NO

2. Does party/amicus have any parent corporations? YES NO

If yes, identify all parent corporations, including all generations of parent corporations:

3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or other publicly held entity? YES NO

If yes, identify all such owners:

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If yes, identify any publicly held member whose stock or equity value could be affected substantially by the outcome of the proceeding or whose claims the trade association is pursuing in a representative capacity, or state that there is no such member:

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If yes, the debtor, the trustee, or the appellant (if neither the debtor nor the trustee is a party) must list (1) the members of any creditors’ committee, (2) each debtor (if not in the caption), and (3) if a debtor is a corporation, the parent corporation and any publicly held corporation that owns 10% or more of the stock of the debtor.

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If yes, the United States, absent good cause shown, must list (1) each organizational victim of the criminal activity and (2) if an organizational victim is a corporation, the parent corporation and any publicly held corporation that owns 10% or more of the stock of victim, to the extent that information can be obtained through due diligence.

Signature: __________________________

Counsel for: __________________________________

/s/ J. William Eshelman May 15, 2023 Amicus Curiae

Date: ___________________