San Diego Committee Against Registration and the Draft (Card) v. Governing Bd. of Grossmont Union High School Dist.

• Decision Date: 06 June 1986
• Docket Number: No. 83-6070,83-6070
• Citation: 790 F.2d 1471
• Parties: , 32 Ed. Law Rep. 467, 12 Media L. Rep. 2329 SAN DIEGO COMMITTEE AGAINST REGISTRATION AND THE DRAFT (CARD), Plaintiff- Appellant, v. The GOVERNING BOARD OF the GROSSMONT UNION HIGH SCHOOL DISTRICT, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1471

790 F.2d 1471

55 USLW 2007, 32 Ed. Law Rep. 467, 12

Media L. Rep. 2329

SAN DIEGO COMMITTEE AGAINST REGISTRATION AND THE DRAFT (CARD), Plaintiff- Appellant, v. The GOVERNING BOARD OF the GROSSMONT UNION HIGH SCHOOL DISTRICT, et al., Defendants-Appellees.

No. 83-6070.

United States Court of Appeals, Ninth Circuit.

Submitted March 11, 1985.

Decided June 6, 1986.

Raphael Levens, San Diego, Cal., for plaintiff-appellant.

Daniel A. Nordberg, Fiore & Nordberg, Newport Beach, Cal., for defendants-appellees.

Appeal from the United States District Court for the Southern District of California.

Before GOODWIN, WALLACE, and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

I. BACKGROUND

The San Diego Committee Against Registration and the Draft (CARD) appeals the district court's denial of its request for a preliminary injunction enjoining the Governing Board of Grossmont Union High School District (the Board) from enforcing certain policies, rules and regulations, pursuant to which the Board has rejected an anti-draft advertisement submitted by CARD for placement in a number of the district's student newspapers. ¹

CARD is a non-profit organization located in San Diego County, California that is actively involved in counseling young men on alternatives to compulsory military service. CARD's membership consists of both students and non-students. The Board is the governing body of the Grossmont Union School District and retains ultimate responsibility for the adoption and enforcement of policies, rules and regulations relating to administration of the district's schools, including policies affecting the student newspapers.

In October, 1982, CARD sought to purchase advertising space from five student newspapers published by high schools within the district. According to CARD, its advertisement was directed toward providing information and counseling to male students regarding alternatives to military service. CARD's requests were referred to faculty advisors for review and subsequently submitted to the principals of the five high schools. The principals, in turn, requested Robert Pyle, Superintendent of the school district, to issue a policy guideline.

On November 8, 1982, Bob King, Acting Assistant Superintendent, issued a directive On March 16, 1983, CARD brought suit against the Board pursuant to 42 U.S.C. Sec. 1983 (1982), alleging that the Board's actions and policies had deprived CARD of its rights under the First and Fourteenth Amendments. CARD sought, inter alia, to enjoin the Board from enforcing those policies, rules and regulations that had resulted in the rejection of CARD's advertisements. CARD argued, as it does here, that because the Board permitted military service advertising, including various military recruitment advertisements, to be published in the five high school newspapers, it could not constitutionally exclude CARD's proffered advertisement.

                instructing all principals to reject CARD's requests on the ground that publication of the advertisements would contribute to the solicitation of illegal acts by the district's students. 2   On January 17, 1983, CARD filed an administrative claim with the Board in which it sought reversal of the Superintendent's decision.  This claim was rejected on February 3, 1983
                

The district court found that "[t]he student newspapers in the Grossmont High School District are limited in nature as a public forum." The district court also found that the military service advertisements that had appeared in the student newspapers were "non-political and offer[ed] vocational opportunities to the students." Finally, the district court found that the Grossmont Union High School District policies permitting publication of political speech by students only and restricting newspaper access by non-students to commercial speech were "reasonable in light of the purpose of school publications." The district court concluded that CARD had failed to show either probable success on the merits of its claim or that it had raised a question that was sufficiently serious to warrant issuance of a preliminary injunction. In this appeal, CARD contends that the district court erred in concluding that it had failed to meet the higher standard--the probability of success on the merits. We agree, although we do not intend to suggest that meeting the lower standard--the raising of a serious question--would not have been sufficient to warrant the relief sought. ³

II. JURISDICTION

As a threshold matter, we address the Board's contention that we lack jurisdiction to hear this appeal as a result of CARD's failure to file its formal notice of appeal within the period of time prescribed by Fed.R.App.P. 4(a). In relevant part, Rule 4(a) provides that

[i]n a civil case in which an appeal is permitted by law as of right ... the notice of appeal ... shall be filed with the clerk of the district court within 30 The provisions of Rule 4(a) are both mandatory and jurisdictional. Browder v. Director, Illinois Department of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978).

days after the date of entry of the judgment or order appealed from .... ⁴

The district court entered an order denying CARD's request for a preliminary injunction on June 14, 1983. On June 24, 1983 rather than filing a notice of appeal pursuant to Rule 4(a), as it should have, CARD filed a motion for permission to appeal the order under Fed.R.App.P. 5(a). The latter rule provides that a district judge may certify an appeal from an order not otherwise appealable. The district court denied this motion on July 11, 1983. On July 19, 1983, CARD filed a Rule 4(a) notice of appeal.

Because CARD's formal Rule 4(a) notice of appeal was not filed within the period of time required by the rule, its appeal is timely only if we construe its Rule 5(a) motion as a notice of appeal. Fed.R.App. 3(c) requires us to construe CARD's Rule 5(a) motion in that manner. Rule 3(c) provides that "[a]n appeal shall not be dismissed for informality of form or title of the notice of appeal." Pursuant to this rule, we are required to broadly construe the notice of appeal provisions of Rule 4(a). See Cel-A-Pak v. California Agricultural Labor Relations Board, 680 F.2d 664, 667 (9th Cir.), cert. denied, 459 U.S. 1071, 103 S.Ct. 491, 74 L.Ed.2d 633 (1982) (Rule 3(c) mandates liberality in determining compliance with Rule 4(a)). Moreover, we have discretion, where the interests of substantive justice require it, to disregard irregularities in the form or procedure for filing a notice of appeal. Id.

In Cel-A-Pak, we recognized that documents not formally denominated notices of appeal have nevertheless been treated as such "as long as they clearly evince the party's intent to appeal and provide notice to both the opposing party and the court." Id. (citations omitted). See also Cobb v. Lewis, 488 F.2d 41, 44 (5th Cir.1974). Here, CARD's Rule 5(a) motion, filed ten days after entry of the district court's order, provided clear notice to both the court and the Board that CARD intended to appeal the order. Accordingly, we construe this motion as a Rule 4(a) notice of appeal which we find to have been timely filed. ⁵

III. THE PUBLIC FORUM DOCTRINE AND THE FIRST AMENDMENT

CARD contends, in essence, that because others' advertisements relating to military service were published in several Grossmont high school newspapers, the Board could not exclude CARD's advertisement, particularly since CARD's advertisement presented an opposing viewpoint to the position taken in the previous ads.

The values embodied in the First Amendment require the state, under certain circumstances, to provide members of the public with access to its facilities for purposes of speech. Certain state facilities, which may be appropriately used for communication, enjoy special constitutional status as "public forums." See generally Cornelius v. NAACP Legal Defense & Educational Fund, --- U.S. ----, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985); Perry Education In Perry and Cornelius, the Supreme Court identified three types of forums to which the public's right of access varies, as does the type of limitations the state may impose upon the right. The Court first focused on "places which by long tradition or by government fiat have been devoted to assembly and debate," such as streets and parks, where "the rights of the state to limit expressive activity are sharply circumscribed." Perry, 460 U.S. at 45, 103 S.Ct. at 954; accord Cornelius, 105 S.Ct. at 3449. The Court stated that

                Association v. Perry Local Educators' Association, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983).  In these public forums, the First Amendment narrowly circumscribes the government's power to exclude or regulate speech.  Of course, a state's mere ownership or control of a facility does not, in itself, guarantee access under the First Amendment.    United States Postal Service v. Council of Greenburgh Civic Associations, 453 U.S. 114, 129-30, 101 S.Ct. 2676, 2685, 69 L.Ed.2d 517 (1981).  Similarly, merely permitting public access to a government facility does not necessarily open it for use as a public forum.    Greer v. Spock, 424 U.S. 828, 836, 96 S.Ct. 1211, 1216, 47 L.Ed.2d 505 (1976).  However, even with respect to nonpublic forums, the state may not act unreasonably.    Cornelius, 105 S.Ct. at 3448
                

[i]n these quintessential public forums, the government may not prohibit all communicative activity. For the state to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. The state may also enforce regulations of the time, place and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.

Perry, 460 U.S. at 45, 103 S.Ct. at 955 (citations omitted); accord ...