in favor of plaintiffs. It is this judgment that defendants
now seek to vacate.
Defendants' one paragraph motion merely states that they are
asking the Court to set aside the judgment and allow them to
file their answer to plaintiffs' summary judgment motion. In
support they attach the affidavit of Edward C. Peterson, Esq.,
one of their attorneys, which sets forth the reasons he failed
to contest the summary judgment motion. Although the motion
does not specify under what authority it is predicated, a
review of it and the attached affidavit clearly indicates that
defendants are seeking to vacate the judgment under Rule
60(b), Fed.R.Civ.P. After carefully reviewing the record,
defendants' motion and attached affidavit, the Court concludes
that reasons given for their failure to contest plaintiffs'
summary judgment motion are insufficient as a matter of law to
justify setting aside the judgment.
Relief from a judgment under Rule 60(b) is extraordinary and
will only be granted "upon a showing of exceptional
circumstances." DiVito v. Fidelity and Deposit Company of
Maryland, 361 F.2d 936, 938 (7th Cir. 1966); Ben Sager
Chemicals International, Inc. v. E. Targosz & Co.,
560 F.2d 805, 809 (7th Cir. 1977); Flett v. W.A. Alexander & Co.,
302 F.2d 321, 323 (7th Cir. 1962). In order to qualify for relief
under the rule, a "movant must demonstrate that he has a
meritorious defense and that arguably one of the four
conditions for relief applies — mistake, inadvertence,
surprise or excusable neglect." Ben Sager Chemicals
International, Inc. v. E. Targosz & Co., supra at 809; See
Universal Films Exchange v. Lust, 479 F.2d 573, 576 (4th Cir.
1973); Gomes v. Williams, 420 F.2d 1364, 1366 (10th Cir. 1970).
Thus, the test to determine whether this Court will vacate the
judgment is two pronged: (1) whether the failure of defendants'
attorneys to contest the summary judgment motion was due to
mistake, inadvertence, surprise or excusable neglect; and (2)
if so, whether defendants can show a meritorious defense to the
summary judgment which has been granted in plaintiffs' favor.
The affidavit of attorney Edward Peterson simply states that
he was one of the attorneys having responsibilities for
defending this suit; because he was responsible for answering
the summary judgment motion, no other attorney handling this
case worked on the answer; and, besides other pressing matters
in the office, the death of his father and the settling of his
fathers affairs kept him from complying with the briefing
schedule with which he was aware. Although the Court is
sympathetic with the personal problems faced by defendants'
attorney, his reasons for failing to contest the motion for
summary judgment do not entitle defendants to relief under
Defendants contend that the failure of their lawyer to
contest the motion was "excusable neglect." Excusable neglect
is generally understood to be that course of action which a
reasonably prudent person would take under the same or similar
circumstances. See e.g. U.S. for the Use and Benefit of Davison
v. York Electrical Construction Co., 25 F.R.D. 478, 479 (D.N.
D. 1960). Obviously, however, the fact that an attorney has
other pressing matters to handle, is faced with personal
problems and elects or fails to answer a motion for summary
judgment, is not excusable neglect. See e.g., Pinero Schroeder
v. Federal National Mortgage Ass'n., 574 F.2d 1117, 1118 (5th
Cir. 1978); Maghan v. Young, 154 F.2d 13 (D.C.Cir. 1946);
Greene v. Pyatt, 78 F.R.D. 362, 363 (E.D.N.Y. 1978). When
encountered with problems that apparently caused his failure to
contest plaintiffs' motion, the reasonably prudent action which
defendants' counsel should have taken under the circumstances,
would have been to file a routine request for an extension of
time. This Court was never informed of the fact that
defendants' attorney was not able to prepare an answer to
Further, the affidavit states that attorney Peterson was the
only one of defendants' several attorneys who was handling
this matter; defendants do not show why another of their
several attorneys could not have answered the summary judgment
motion or, at the very least, why another of their attorneys
did not seek an extension of time for defendants to answer.
See Flett v. W.A. Alexander Co., 302 F.2d 321, 323 (7th Cir.
1962) (no showing of why second attorney could not have handled
case). Therefore, the affidavit in support of defendants'
motion to vacate does not establish that the failure to answer
the motion was due to excusable neglect. In fact, the conduct
of defendants' attorney falls far short of the exceptional
circumstances required to vacate a judgment. For these reasons,
the motion to vacate should be denied.
But assuming, arguendo, that defendants have made a showing
of excusable neglect, their proposed answer to plaintiffs'
motion for summary judgment does not interpose a meritorious
defense. Their opposing memorandum and supporting material do
not contradict or raise any issue of fact or assert any
principle of law which would require this Court to deny
plaintiffs' motion.*fn1 It appears that the undisputed facts
are as follows.
During the period alleged in the complaint, defendants have
maintained a policy that allows representatives of the armed
forces access to the Chicago public high schools; military
recruiters can disseminate literature, post advertisement on
school grounds and in school papers, conduct workshops,
counsel students as to careers in the armed services, and
administer vocational aptitude tests. Father Skotnicki, during
the same period, repeatedly contacted employees of the Chicago
Board of Education to request permission on behalf of himself
and the Clergy and Laity Concerned for access to the public
high schools for the purpose of providing students with
information and counselling regarding draft registration,
military service, conscientious objection and legal
alternatives to the draft, specifically through distribution
of literature and personal contact with students. Defendants
have consistently denied plaintiffs, and any other groups with
similar views, access to the schools.
Plainly, defendants' policy denies plaintiffs access to the
schools while at the same time allows military recruiters the
opportunity to enter school premises. It is clear that the
school board is discriminating against plaintiffs based on the
content of the message they want to convey to students.
Defendants voluntarily allow access to the schools to one
group, yet, at the same time deny access to another group
which seeks to disseminate opposing information. Such a policy
has the effect of favoring a particular viewpoint on careers
in the military service.
Once it opens a forum for the expression of views, under the
dual mandate of the First Amendment and the equal protection
clause, defendants as agents of state government cannot pick
and choose which views they feel should be expressed in the
forum. Bonner-Lyons v. School Committee, 480 F.2d 442, 444 (1st
Cir. 1973). In our system of government, "students may not be
regarded as closed-circuit recipients of only that which the
State chooses to communicate." Tinker v. Des Moines School
District, 393 U.S. 503, 513, 89 S.Ct. 733, 740, 21 L.Ed.2d 731
(1969). When a restriction has the effect of favoring the
expression of a particular point of view, the First Amendment
is plainly offended, and such a restriction is subject to
strict scrutiny. See First National Bank v. Bellotti,
435 U.S. 765, 785-86, 98 S.Ct. 1407, 1420-21, 55 L.Ed.2d 707 (1978)
("Especially where, as here, the legislature's suppression of
speech suggest an attempt to give one side of a debatable
an advantage in expressing its views to the people, the First
Amendment is plainly offended."); City of Madison, Joint School
District No. 8 v. Wisconsin Employment Relations Commissions,
429 U.S. 167, 175-76, 97 S.Ct. 421, 426-27, 50 L.Ed.2d 376
(1976); Consolidated Edison Co. v. Public Service Commission,
447 U.S. 530, 544-48, 100 S.Ct. 2326, 2337-39, 65 L.Ed.2d 319
(1980). Here, defendants denial of access substantially favors
one point of view, and so this restriction is only valid if it
is "finely tailored to serve substantial state interests, and
the justification offered for any distinctions it draws must be
carefully scrutinized." Carey v. Brown, 447 U.S. 455, 461-62,
100 S.Ct. 2286, 2290-91, 65 L.Ed.2d 263 (1980); Widmar v.
Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981).
Defendants argue that plaintiffs are not entitled to access
to the schools because such access would constitute an
establishment of religion. They contend that since Father
Skotnicki is a clergyman and because the content of
plaintiffs' message is religiously oriented, their presence in
the public schools would be an impermissible establishment of
religion. Thus, defendants argue that they are justified in
denying equal access to plaintiffs because to allow them
access would violate the establishment clause.
The validity of defendants' argument necessarily depends on
establishing that the nature of plaintiffs' proposed
presentations in the schools are religious. However, the facts
of this case do not support defendants' argument. Its only
support in the record is the affidavit of Dr. Allen Smith,
director of the Chicago Board of Education's Bureau of
Guidance Programs and Services. But, the affidavit contains
only a conclusory statement that because Dr. Smith felt the
presentations proposed by plaintiffs were "religiously
oriented", plaintiff should be denied access to Chicago's
public high schools. His affidavit contains no statement of
facts to support this conclusion. Expression of opinions and
conclusions "are totally ineffectual, and are not to be given
any weight whatever, in a summary judgment proceeding."
G.D. Searle & Co. v. Chas. Pfizer & Co., 231 F.2d 316 (7th Cir.
1956). Furthermore, in their memorandum opposing summary
judgment, defendants admit that the "presentations [plaintiffs]
proposed making are not specifically religious. . . ."
Also, the Court does not consider it significant that one of
the plaintiffs is a priest. It is the nature of plaintiffs'
message that is in issue and, as defendants admit, their
message is secular, not religious. A clergyman can express his
views on a secular subject without making his presence in the
schools religious in nature. Accordingly, there is a complete
lack of any probative evidence in defendants' submissions
which raises any genuine issues of fact over the religious
nature of plaintiffs' message.
Moreover, a policy of allowing religious groups access to a
public forum equal to that allowed secular groups would not
violate the establishment clause. In Widmar v. Vincent,
454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981), the Supreme
Court held that a university's policy of excluding religious
groups from facilities it had opened to other groups violated
the fundamental principle that a state regulation of speech be
content neutral. The university, in order to justify its
discriminatory exclusion of religious groups from the school
facilities which it had opened to other groups, argued that
allowing equal access to these groups would violate the
establishment clause. The university contended that it had a
compelling interest in ensuring a separation of church and
state. The Court concluded that, although the university's
interest in complying with its constitutional obligations under
the establishment clause could be characterized as compelling,
an "equal access" policy is not incompatible with that clause.
Likewise, even if defendants had shown that plaintiffs'
messages were religious, a policy of equal access would not be
violative of the establishment clause. The First Amendment
demands neutrality of treatment between religious and
Committee for Public Education and Religious Liberty v.
Nyquist, 413 U.S. 756, 792-93, 93 S.Ct. 2955, 2975, 37 L.Ed.2d
Defendants next contend that in allowing military recruiters
access to the schools, they have not created an open forum.
Relying on the Supreme Court's recent decision in Perry
Education Association v. Perry Local Educator's Association,
460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983), defendants
argue that public schools belong to a category of property
where access is subject to strict control. In Perry, two rival
unions had long used the school systems internal mail
facilities to contact teachers. After an election selecting one
of them as an exclusive bargaining agent for the teachers, a
collective bargaining agreement was entered into which provided
that no other labor union except the exclusive bargaining agent
would be allowed access to the schools' internal mail system.
The rival union sued, alleging that preferential access to the
internal mail system violated its rights under both the First
Amendment and equal protection clause. The Court held that
because the schools' internal mail system was not either a
public or limited forum, the school board could restrict the
use of that facility.
Contrary to defendants' assertions, Perry did not hold that a
public school system belonged to the category of property in
which it is permissible to deny access based on the viewpoint
of the speaker. Rather, the Court held that "the school mail
facilities at issue here fall within this third category." Id.
103 S.Ct. at 955 (emphasis added). All Perry establishes is
that a school board may constitutionally restrict access to
certain facilities within a school system, but it does not
establish that a school board can completely deny access to the
whole school system to a group that wants to express views
differing from those held by a group that has been allowed
More importantly, the rival union in Perry had available to
it substantial alternative channels of access in the schools.
The rival union was not denied complete access. The Court noted
that "the reasonableness of the limitations on [the rival
union's] access is also supported by the substantial
alternative channels open for . . . communication to take
place." Id. 103 S.Ct. at 959. In this case, plaintiffs are not
allowed any access. They do not, in contrast to the plaintiffs
in Perry, have available to them "substantial alternative
channels" to present their message to the students.
Even though schools are not traditional open forums where
viewpoint discrimination is per se unconstitutional, many cases
have held that the states' obligation of viewpoint neutrality
applies to discriminatory access restriction imposed in public
schools. For example, in Tinker v. Des Moines Independent
Community School District, 393 U.S. 503, 89 S.Ct. 733, 21
L.Ed.2d 731 (1969), the Court struck down a restriction on
students wearing armbands in protest of the Vietnam War in part
because the school board did not prohibit the wearing of any
other symbols by the students. Bonner-Lyons v. School
Committee, 480 F.2d 442 (1st Cir. 1973), prohibited a school
board from disseminating, through the schools message
distribution systems, information against forced busing while
denying proponents of busing equal access to the message
distribution system. Another court required a school board to
rent its school auditorium to a racially discriminatory
organization because the auditorium was available for use by
other private organizations. National Socialist White People's
Party v. Ringer, 473 F.2d 1010 (4th Cir. 1973). See also, e.g.,
Knights of the KKK v. East Baton Rouge Parish School Board,
578 F.2d 1122 (5th Cir. 1978); Gay Student Organization v.
Bonner, 509 F.2d 652 (1st Cir. 1974); Brooks v. Auburn
University, 412 F.2d 1171 (5th Cir. 1969). Thus, although
schools are not traditional public forums, courts have
consistently struck down access restrictions when such
restrictions are based, in part, on the viewpoints of the
speakers' messages. In the instant case,
defendants are restricting access to plaintiffs based on the
viewpoint of their message; defendants have not met their
burden of showing a compelling justification for excluding
plaintiffs from the forum.
Defendants' arguments against allowing plaintiffs access to
the schools center on their fear that plaintiffs will use the
school to propagandize their views on the moral and social
evils of war. These arguments misperceive the essence of this
suit. This is not an "absolute access" case, where plaintiffs,
once allowed access to the forum, would be free to discuss any
subject matter. This is a case for a claim of "equal access"
to discuss a subject that the school board has already
approved when it allowed military representatives into its
schools. There is nothing in the record to suggest that the
military representatives are expressing their views on the
moral or social issues of war itself; the existing record only
shows that the representatives are disseminating information
to the students about careers in the military. Therefore,
plaintiffs seek access to the schools for the limited purpose
of providing information on legal alternatives to the draft
and military service; they are not seeking to disseminate any
information about the moral and social evils of war. Further,
plaintiffs are subject to all time, place and manner
restrictions that defendants have placed on military
recruiters in each high school. Thus, for example, if a
particular high school only allows the military
representatives to sit in the counsellors' office and
distribute literature, plaintiffs' access is limited to the
same place and manner in that particular high school.
For the foregoing reasons, the motion to vacate is denied.
The parties are invited to propose a draft judgment order,
consistent with the above expressed views, for consideration
and entry by the Court.