STUDENTS' RIGHTS LEGAL BRIEFING - 2004
The Federal Constitution
Students are vested with two distinct sets of rights in the public school setting. First, all students retain their constitutionally protected right to freedom of speech and expression. Second, the federal Equal Access Act guarantees high school students the right to have Bible clubs on campus.
The Supreme Court has addressed the right of students to express their opinions on their public school campuses. Specifically, the Court has held that students and teachers do not "shed their constitutional rights . . . at the schoolhouse gate." [FN1] This principle means that students rightfully on a public school campus have First Amendment rights that cannot be denied without reason. It is important to note that the 8th Circuit in Mergens held that students have a First Amendment right and an Equal Access Act right to hold a student-initiated Bible club meeting on campus. [FN2] Thus, even in the event that a school has not allowed any noncurriculum clubs to meet, the Tinker rule would still require that students be allowed to associate with other students in Bible clubs. School officials must be very careful about abridging the rights of students who are rightfully on campus.
Material or Substantial Disruption:
The Heart of Tinker
Under the Tinker decision, a principal cannot prohibit student speech simply because he believes there will be a disruption of the educational process. In fact, he can only restrict student speech if it will "materially or substantially disrupt school discipline." [FN3] Students have the right to discuss religious beliefs, and even share religious materials, with their peers between classes, at break, at lunch, and before and after school. As the Court declared:
It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years. [FN4]
In the nearly 25 years since Tinker, the Supreme Court has continued this holding. It has now been the Court's holding for almost 75 years.
Tinker's holding did not depend on a finding that the school was a public forum. The Court emphasized, instead, that "[w]hen [a student] is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions...." [FN5] Therefore, whether or not a school campus constitutes a public forum for nonstudents, it is clear that the students who are required to attend have the protection of First Amendment Free Speech guarantees.
Fundamental Rights of Students
Our educational system requires students to attend schools. This coercion gives students the legal right to be on campus. As Justice Fortas noted:
In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are persons' under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views. As Judge Gewin speaking for the Fifth Circuit, said, school officials cannot suppress "expressions of feelings with which they do not wish to contend." [FN6]
Student Rights On Campus After Tinker
After Tinker, the law regarding the First Amendment rights of students is well-established. Student speech cannot be restricted because of the content of that speech. School administrators can only prohibit protected speech by students when it "materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school." [FN7]
It is well settled that religious speech is protected by the First Amendment of the Constitution, even when that speech is taking place on the public school campus.[FN8] In fact, the right to persuade, advocate or evangelize a religious viewpoint, implicates the very reason the First Amendment was adopted. As the Supreme Court held in Thomas v. Collins:
[T]he protection [the Framers] saw was not solely for persons in intellectual pursuits. It extends to more than abstract discussion unrelated to action. The First Amendment is a charter for government, not for an institution of learning. Free trade in ideas means free trade and the opportunity to persuade, not merely to describe facts.[FN9]
The nature of public schools does not justify the forfeiture of Constitutional rights. In fact, the public nature of such schools enhances the Constitutional rights of students. The school is the best place to teach students how the laws of the land apply.
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The Equal Access Act
The Supreme Court held, in Widmar v. Vinvent, that when colleges allowed student groups to use their facilities they could not discriminate against student religious groups. [FN10] In other words, Christian students have to be allowed to use a meeting room on campus with the same restrictions applied to any other student group. The Establishment Clause of the First Amendment is not violated when a government entity, such as a public university, treats all groups the same, without attempting to censor religious speech. The Mergens Court quoted from Widmar extensively as they explained why secondary students have the right to have religious clubs on their campus.
Congress enacted the Equal Access Act to cure pervasive antireligious bigotry exhibited by public secondary school officials in the aftermath of the Supreme Court's school prayer cases. Three factors determine whether the Equal Access Act compels official recognition of a Bible club by school officials: 1) does the school receive federal funds; 2) is the school a public secondary school; and 3) does the school allow any noncurriculum clubs to meet on campus?
When these factors are satisfied, federal law compels school officials to provide equal access to students who want to organize and conduct Bible clubs and student prayer groups. In Garnett v. Renton School Dist. No. 403, a Federal Court of Appeals ruled that the Equal Access Act must be complied with even in the face of a state constitutional provision to the contrary.[FN11]
Westside Community Schools v. Mergens
The United States Supreme Court upheld the constitutionality of the Equal Access Act in Westside Community Schools v. Mergens (Mergens).[FN12] According to the Mergens Court, the above-mentioned factors should be employed in a standard three-prong analysis, as follows:
1. Federal Funding. Does the school receive any federal funds at all? This question is answered, simply, yes or no. If the answer is no, the Equal Access Act does not apply. If the answer is yes, it is necessary to examine the next prong of the Mergens-Equal Access Act test.
2. Secondary Schools. Is the school in question a secondary school as defined by state law? This information should be available from the local State Board of Education. If the school in question is classified as a secondary school, it is then necessary to examine the third prong of the Mergens-Equal Access Act test. While it varies from state to state, most states classify a secondary school as grades nine through twelve.
3. Noncurriculum Clubs on Campus. Does the school allow noncurriculum clubs to meet on campus? Here the Mergens Court was very specific. Schools cannot misrepresent the nature of clubs that are permitted to meet. The Court explicitly examined the intent of Congress concerning noncurriculum-related clubs:
[W]e think that the term noncurriculum related student group' is best interpreted broadly to mean any student group that does not directly relate to the body of courses offered by the school. In our view, a student group directly relates to a school's curriculum if the subject matter of the group is actually taught, or will soon be taught, in a regularly offered course; if the subject matter of the group concerns the body of courses as a whole; if participation in the group is required for a particular course; or if participation in the group results in academic credit. . . . This . . . definition . . . is consistent with Congress' intent to provide a low threshold for triggering the [Equal Access] Act's requirements. [FN13]
Thus, the nature of the clubs currently meeting at the school is key. Service clubs, for example, such as the Key Club, the Lions Club, Zonta and Interact are not considered curriculum-related.
Additionally, clubs such as the Chess Club do not relate to the curriculum under normal circumstances. For example, only when a school teaches chess as an academic subject, for which students received a grade, would a Chess Club be considered related to the curriculum. The school district's argument, in Mergens, that chess was curriculum related because it enhanced logical thinking and the performance of mathematical calculations was rejected by the Supreme Court.
In Mergens, Justice O'Connor noted that "if a state refused to let religious groups use the facilities open to others, then it would demonstrate not neutrality but hostility toward religion. The Establishment Clause does not license government to treat religion and those who teach or practice it, simply by virtue of their status as such, as subversive of American ideals and therefore subject to unique disabilities." [FN14] When a public high school official refuses to allow student-initiated Bible clubs treatment equal to that given other noncurriculum clubs meeting on campus, it treats those students as second-class citizens. This attitude is precisely the one which the Equal Access Act prohibits.
Bible Clubs Must Receive Official Recognition
Official recognition means that the Bible club must be treated the same as other clubs meeting on campus. "Official recognition allows student clubs to be part of the student activities program and carries with it access to the school newspaper, bulletin boards, the public address system, and the annual Club Fair."[FN15] Under that view, Bible clubs are allowed to advertise on campus. Types of advertisement could include, but are not limited to: flyers distributed among other students, posters displayed on the school walls, notices in the school newspaper and announcements included during the morning or afternoon announcements. It is important to note that the Bible club is not responsible to make sure the students know that the club is student-initiated. Rather, this is a responsibility of school officials.
Once the Equal Access Act is triggered, the school must provide a room for the Bible club. The school must also make its resources available to the Bible club in the same way that those resources are made available to other clubs. Additionally, the Bible club must be allowed to meet at any time other clubs are allowed to meet. If there is a club period, the Bible club must be allowed to meet during that period.
If other clubs are allowed to have school-wide assemblies to espouse their views, then the Bible club must be allowed the same privilege. Secondary school officials are not allowed to discriminate against a student group because of its message. Neither is a secondary school official allowed to censor the speech of the Bible Club by requiring it to delete references to Christianity from the club's constitution, announcements, or other materials.
Sponsors v. Custodians: Faculty/Staff
The only difference between a Bible club and any other club allowed to meet on the school campus is the use of faculty members as club sponsors. The Equal Access Act specifically allows for a faculty/staff custodian as compared to a normal club sponsor. This means that the faculty/staff custodian does not have control of the Bible club. He or she is only there to ensure that the Bible club does not violate school policies.
The Bible club must be student-initiated. This means that students must create and lead the club. It does not mean that they cannot have outside speakers. It only means that a non-student cannot lead the club. Community leaders and others can be invited to speak occasionally.
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Literature Distribution
Students' First Amendment rights include the right to distribute Gospel tracts during non-instructional time, the right to wear shirts with overtly Christian messages and symbols, and the right to pray and discuss matters of religion with others. Further, schools may not prevent students from bringing their Bibles to school. In fact, school officials must allow students to read their Bibles during free time, even if that free time occurs during class. The standard that must be applied by the school is: Does the activity "materially or substantially disrupt school discipline?" Unless a student is participating in activities that are disruptive, the school must allow them to continue.
As a preliminary matter, it is a constitutional axiom that the distribution of free religious literature is a form of expression protected by the First Amendment. Religious and political speech are protected by the First Amendment. [FN16] Furthermore, "advocacy and persuasive speech are included within the First Amendment guarantee if the speech is otherwise protected.[FN17]
The United States Supreme Court's consistent jurisprudence, for over 50 years, recognizes the free distribution of literature as a form of expression protected by the United States Constitution.[FN18] In Lovell, the United States Supreme Court put the case for constitutional protection of leaflets and pamphlets quite clearly:
The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our history abundantly attest. The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion. What we have had recent occasion to say with respect to the vital importance of protecting this essential liberty from every sort of infringement need not be repeated.[FN19]
Of course, the constitutional value of leaflets and pamphlets is not lessened by the fact that they address matters of religion. The materials at issue in Lovell were "a pamphlet and magazine in the nature of religious tracts. . . ."[FN20] Just five years after Lovell, in Murdock v. Pennsylvania, the United States Supreme Court said:
The hand distribution of religious tracts is an age old form of missionary evangelism -- as old as the history of printing presses. It has been a potent force in various religious movements down through the years. . . . It is more than preaching; it is more than distribution of religious literature. It is a combination of both. Its purpose is as evangelical as the revival meeting. This form of religious activity occupies the same high estate under the First Amendment as do worship in the churches and preaching from the pulpits. [FN21]
School officials may not lump a student's right to distribute free literature together with more disruptive forms of expression, such as solicitation. In a recent decision, a plurality of the Supreme Court noted the experience of thousands of "residents of metropolitan areas [who] know from daily experience [that] confrontation by a person asking for money disrupts passage and is more intrusive and intimidating than an encounter with a person giving out information."[FN22] In fact, distribution of literature is, inherently, even less disruptive than spoken expression. As the Supreme Court stated, "[o]ne need not ponder the contents of a leaflet or pamphlet in order mechanically to take it out of someone's hand, but one must listen, comprehend, decide and act in order to respond to a solicitation."[FN23]
The applicable standard - material and substantial disruption - is not met by an undifferentiated fear or apprehension of disruption. In other words, it is not enough for school officials to fear that allowing religious speech will offend some members of the community. As the Supreme Court said, "in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression."[FN24] Where a student wishes to peacefully distribute free literature on school grounds during non-instructional time, there simply is nothing which "might reasonably [lead] school authorities to forecast substantial disruption or material interference with school activities. . . ."[FN25]
In fact, several courts have held that the distribution of religious literature by high school students is protected speech under the First Amendment and Fourteenth Amendment. [FN26] Note that in Hemry school officials ultimately conceded that students had the right to distribute the religious material on campus both inside and outside the school building. [FN27]
As the Supreme Court clearly held in Tinker:
In our system, state-operated schools may not be enclaves for totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are persons under our Constitution. They are possessed of fundamental rights which the state must respect, just as they themselves must respect their obligations to the state. In our system, students may not be regarded as closed-circuit recipients of only that which the state chooses to communicate. They may not be confined to the expressions of those sentiments that are officially approved. [FN28]
While school officials may seek to distinguish Tinker as inapplicable by arguing that a public school is not a traditional public forum, such assertions are unavailing because "[tlhe holding in Tinker did not depend upon a finding that the school was a public forum." [FN29] As the Tinker Court noted, when a student "is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions. . . ." [FN30]
Further, as the Rivera court noted, "whether or not a school campus is available as the public forum to others, it is clear that the students, who of course are required to be in school, have the protection of the First Amendment while they are lawfully in attendance." [FN31] The Tinker Court also recognized that "personal intercommunication among students" in high schools is an activity to which schools are dedicated. [FN32]
Certainly, it is necessary to acknowledge that school officials have "important, delicate and highly discretionary functions" to perform. [FN33] These functions, however, must be performed "within the limits of the Bill of Rights." [FN34] "The vigilant protection of constitutional freedoms is nowhere more vital than in a community of American schools." [FN35]
School officials need not fear that distribution activities of students may be imputed to them, and that the Establishment Clause would thereby be violated. This very argument has been reviewed and rejected by the United States Supreme Court. In Mergens, the Supreme Court stated, as a general proposition, that the activities of student evangelists in a public school do not present any Establishment Clause problem:
Petitioner's principal contention is that the Act has the primary effect of advancing religion. Specifically, petitioners urge that, because the student religious meetings are held under school aegis, and because the state's compulsory attendance laws bring the students together (and thereby provide a readymade audience for student evangelists), an objective observer in the position of a secondary school student will perceive official school support for such religious meetings. . . . We disagree. [FN36]
Of course, Mergens merely reflects the Establishment Clause's intended limitation - not on the rights of individual students - but on the power of governments (including school officials). As the Mergens Court stated, "there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect." [FN37]
KNOWING YOUR RIGHTS MEDIA GUIDE
What happens when I am contacted by the news media? How do I respond?
In many communities, news reporters routinely cover local government activities, including school board meetings. For example, if you address a school board meeting, you may find that a reporter is in the audience. This presents an excellent opportunity to share your concerns with the school board and with the news media, which ultimately means the public. There are at least two sides to every story. You can bet the folks on the other side of the issue will take advantage of an opportunity to tell their story to a reporter. You should too.
How do I handle such a request? What do I say to a reporter?
The best way to handle a request from a news reporter is to be open and direct. Most reporters do not cover one topic. They bounce around, often covering a myriad of subjects in any given week. But even if they are covering a particular issue, they may still be unaware of your concerns on the issue and perhaps even ill-informed about the issue's intricacies. You can help educate the reporter, while at the same time taking advantage of an opportunity to express your side of the story. Be clear and concise. Make sure you know what you want to say and how you will say it. Get to the bottom line quickly. Focus on one or two key points. Keep it simple. Do not get bogged down with too many details. Try to explain the essence of your position in a sentence or two. Reporters work under tight time and space limitations. They often must condense a complicated issue into a few sentences or paragraphs. Why not help them by being clear and concise? When you do, you increase your chances that the news coverage will be fair, balanced, and accurate.
How can I guarantee that my position will not be misstated? If I do not talk to a reporter, then I cannot be misquoted, right? Isn't that the best thing to do?
There are no guarantees concerning the outcome of a news story. Believe it or not, most reporters are not conspiring to slant a story one way or the other. Most are professionals who strive to tell both sides of a story with balance and fairness. But, of course, you cannot be sure what information will be used and what information will be withheld. You certainly cannot be sure how it will be presented. But there is one thing you can know with certainty: If you do not offer your point of view and remain silent, you will have no input in the story. You will not be misquoted, but what could even be more damaging, you will not be quoted either. To compete equally in the marketplace of ideas, you must deal with the news media. You need to get your ideas and concerns into the marketplace, and one of the best ways to do that is through the media.
I do not want to be treated unfairly, though. How can I maximize the chances that my comments will be presented without bias? I just want to get a "fair shake."
Again, the best approach is one of openness and clarity. Tell your story in a concise manner. There is nothing wrong with asking a reporter, "Do you understand what I am trying to say?" By asking that question, you give the reporter an opportunity to tell you how they perceive your position. Remember, communication is the key. You need to be direct, honest, and concise. Do not be afraid to repeat yourself. State your position. Re-state it. Re-state it again, if necessary. As I mentioned earlier, reporters often learn about a story as they are covering it. Help the education process along. Be ready, willing, and able to provide a reporter with any additional information (written or otherwise) to help clarify and reinforce your position. Do not overload a reporter with a ream of documents, but a well-placed supporting document or two never hurts. In most instances, you will have just one opportunity to make your point. Take advantage of it.
All right, what happens if I participate and I am still misquoted? What do I do if the newspaper or TV news story is not accurate?
The first thing you should do is stop and take a deep breath. If you feel the story was biased or unfair, you will likely be upset, angry, or worse. Calm down before you do anything. Before you take any action, ask yourself these questions: "Was the news story fair? Were both sides of the story presented and given equal treatment?" Re-read the story or play back the videotape before you answer. Notice I said both sides of the story. Sometimes we have a tendency to overreact and think a story is unfair because it includes criticism or opposition. Remember, a story is fair and balanced if it includes both sides of a story and treats both equally. A fair and balanced story should never be an advocacy piece for either side, including your own. If after considering all this, you still come to the conclusion the story was unfair, you should contact the reporter who did the story. Express your concerns in a calm fashion. No one likes to get a phone call from a screamer. Discuss the story and explain why you felt your position was misstated or treated unfairly. Use specifics. Remember, keep the lines of communication open. Do not threaten a reporter with a line like, "I will never talk to you again!" That may make you feel better, but it does not accomplish anything.
Your goal should be to develop trusting relationships with reporters and editors. That is right, I said trusting. The newspaper, radio, or television station is going to remain part of your community, and unless you decide to move away, you will no doubt deal with the media again. It will be to your advantage to get to know a reporter or a news editor. You do not have to become best buddies, but you need to talk with them, even when they are not doing a story that concerns you developing a relationship with them, you will get to know them better, and more importantly, they will get to know you better. This builds trust. Trust helps keep the lines of communication open. And that is an important building block to fair and balanced news coverage.
By the way, if you think a reporter has done a good job with a story, pick up the phone and tell them. They like to hear that also.
If I have an interesting news story or would like some coverage about a specific event, what is the best way of going about contacting a reporter?
The more comfortable you become dealing with the news media, the more likely you will want to initiate the contact. Remember, equal access to the marketplace of ideas means learning how to deal with the news media, and that should include being pro-active. Reporters are always looking for news stories, and news stories center around ideas, issues, events, and people. You can alert reporters to potential news items and thereby become a valuable resource. So do not be afraid to initiate the contact. This is where developing a relationship with a reporter is very beneficial. If you know someone at the newspaper, radio or TV station, pick up the phone and give them a call. Let them know what is on your mind. Ask them who you should talk to about your potential story.
If you do not have a personal contact in the news department, try calling a news editor or an assignment editor. They are the decision-makers when it comes to covering a news story. Follow up the phone call with a letter or information that can be faxed to their attention. Remember, reporters have to work on tight schedules, so the faster they can get information, the better. Fax machines provide instant access. But do not abuse the opportunity. No news organization likes to be bombarded with a proliferation of lengthy news releases. Be selective of what you send, and keep it short.
One final note: Respect deadlines. If you call a reporter or an editor and he cannot talk to you, do not be offended. Chances are he is trying to beat a deadline. Ask him when it would be convenient for you to call back. As a general rule, avoid contacting news rooms in the late afternoon or early evening. That is when most reporters and editors are under the gun (particularly in the television industry). Generally, the best time to call reporters is early morning, after they have had their first cup of coffee.
E N D N O T E S
1. Tinker v. Des Moines Independent School District, 393 U.S. 503, 506 (1969).
2. Westside Community Schools v. Mergens, 867 F.2d 1076 (1989),
3. Tinker at 509 (quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)).
4. Tinker, at 506.
5. Id., at 512-13.
6. Tinker, at 511 (quoting Burnside, at 749).
7. Id., at 509.
8. Widmar v. Vincent, 454 U.S. 263, 269 (1981) (citing Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981)); Westside Community Schools v. Mergens, 496 U.S. 226 (1990); Niemotko v. Maryland, 340 U.S. 268 (1951); and Saia v. New York, 334 U.S. 558 (1948).
9. Thomas v. Collins, 323 U.S. 516, 537 (1945) (emphasis added)
10. Widmar, 454 U.S. 263 (1981)
11. Garnett v. Renton School Dist. No. 403, 987 F.2d 641 (9th Cir. 1993)
12. Westside Community Schools v. Mergens, 496 U.S. 226 (1990)
13. Id., at 239-40.
14. Id. (quoting McDaniel v. Paty, 435 U.S. 618, 641 (1978) (Brennan, J., concurring in judgment)).
15. Id., at 247.
16. Lovell v. City of Griffin, 303 U.S. 444 (1938); Widmar, 454 U.S. 263, 269 (1981).
17. Rivera v. East Otero School District R-1, 721 F. Supp. 1189, 1194 (D.Colo. 1989) (citation omitted).
18. Lovell, 303 U.S. 444; Heffron v. International Society for Krishna Consciousness, 452 U.S. 640 (1981).
19. Lovell, 303 U.S. at 452 (emphasis added) (citations omitted).
20. Lovell, 303 U.S at 448.
21. Murdock, 319 U.S. at 108-09 (1943) (footnotes omitted).
22. United States v. Kokinda, 497 U.S. 720, 734 (1990) (plurality).
23. Id.
24. Tinker, 393 U.S. 508.
25. Id., at 514.
26. See Rivera v. East Otero School District R-1, 721 F. Supp. 1189 (D. Colo. 1989); Thompson v. Waynesboro Area School District, 673 F. Supp. 1379 (N.D. Pa. 1987); Nelson v. Moline School District No. 40, 725 F. Supp. 965 (C.D. Ill. 1989); Hemry v. School Board of Colorado Springs School District 11, 760 F. Supp. 856 (D. Colo. 1991).
27. Hemry v.School Board of Colorado Springs, No.90-S-2188, Stipulation for Dismissal (D. Colo. Sept. 1991) (unpublished). Accord Harden v. School Board of Pinellas County, No. 901544-CIV-T-15A, Consent Decree and Order (M.D. Fla. 1991) (students permitted to distribute religious newspaper on campus).
28. Tinker, 393 U.S. at 511.
29. Rivera, 721 F. Supp. at 1193.
30. Tinker, 393 U.S. at 512-13.
31. Rivera, at 1197.
32. See Tinker, 393 U.S. at 512. Also, Hemry does not contravene this proposition. The Hemry court clearly stated that the facts of the case before it were distinguishable from the facts in Rivera. Hemry at 859. Because the school in Hemry did not ban literature, but only enforced reasonable time, place, and manner restrictions, the court did apply a forum analysis. Nonetheless, Tinker and Rivera still stand for the proposition that literature distribution cannot be banned in public schools, regardless of what type of forum they constitute. As noted above, the final disposition of Hemry resulted in a Stipulation for Dismissal which allowed unregulated personal distribution of literature and mass distribution subject only to reasonable time, place, and manner restrictions. Stipulation for Dismissal (D. Colo. Nov. 12, 1991) (unpublished).
33. West Virginia v. Barnette, 319 U.S. 624, 637 (1943).
34. Id., at 637.
35. Shelton v. Tucker, 364 U.S. 479, 487 (1967).
36. Mergens, at 249-50 (citation omitted) (emphasis added).
37. Mergens, at 250 (emphasis in original).