Searcey v. Crim

• Decision Date: 17 April 1987
• Docket Number: No. 86-8681,86-8681
• Citation: 815 F.2d 1389
• Parties: 38 Ed. Law Rep. 929 Emory SEARCEY, et al., Plaintiffs-Appellees, v. Alonzo CRIM, et al., Defendants-Appellants, United States of America, Intervenor-Defendant, Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1389

815 F.2d 1389

38 Ed. Law Rep. 929

Emory SEARCEY, et al., Plaintiffs-Appellees, v. Alonzo CRIM, et al., Defendants-Appellants United States of America, Intervenor-Defendant, Appellee.

No. 86-8681.

United States Court of Appeals Eleventh Circuit.

April 17, 1987.

Warren C. Fortson, Bruce H. Beerman, Fortson and White, Atlanta, Ga., for defendants-appellants.

Ralph Goldberg, Atlanta, Ga., for plaintiffs-appellees.

Myles E. Eastwood, Atlanta, Ga., Robert V. Zener, U.S. Dept. of Justice, Civil Div., Washington, D.C., for USA.

Jeffrey O. Bramlett, Bondurant, Mixson & Elmore, Cathleen M. Mahoney, Atlanta, Ga., for Andrews, Presbyterian Church, amicus.

Appeal from the United States District Court for the Northern District of Georgia.

Before VANCE and KRAVITCH, Circuit Judges, and BROWN ^*, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

Important questions concerning access to public schools for expressive activity are raised by this case. The district court resolved one of the critical issues at the summary judgment stage by deciding that the Atlanta public schools had created certain "limited" public forums within the schools "at least for the purpose of presenting career and educational opportunities to students." 642 F.Supp. 313. We conclude, however, that this important first amendment issue need not, and should not, have been resolved at this preliminary stage of the proceedings. We affirm, but for reasons other than those given by the district court.

Several individual peace activists ¹ and a coalition of organizations known as the Atlanta Peace Alliance (APA) ² brought this action for declaratory and injunctive relief against defendants/appellants Alonzo Crim, individually and in his official capacity as Superintendent of the Atlanta Public Schools, and the Atlanta Board of Education (Board). The complaint alleged that appellants had violated appellees' first and fourteenth amendment rights by arbitrarily and capriciously denying appellees permission to use established channels in the Atlanta public schools to present information to students concerning peace and educational and career opportunities related to peace. Appellees alleged that appellants' policy and practice was to allow armed forces recruiters and personnel to: disseminate literature through guidance counselors and to post advertisements on high school premises; conduct workshops on high school premises and counsel students as to vocations and careers in the armed forces; and conduct ROTC training in the Atlanta public schools. Despite appellants' policy of allowing armed forces personnel access to the Atlanta schools, appellants refused to grant appellees' requests for similar access rights. ³

Appellants' primary argument throughout the proceedings has been that their access policies are reasonable regulations of expressive activity in a nonpublic forum. Appellants place primary reliance upon the Supreme Court's decision in Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983), applying the Court's forum doctrine in the public school context. The Perry Court identified three categories of government property: (1) traditional public forums, which have "by long tradition or by government fiat" been devoted to assembly and debate; (2) designated, created or limited ⁴ public forums, consisting of property "which the State has opened for use by the public as a place for expressive activity;" and (3) nonpublic forums, which consist of property "which is not by tradition or designation a forum for public communication." 460 U.S. at 45-46, 103 S.Ct. at 954-55.

Categorizing public school property as one of these three types determines the standard by which the first amendment claims are evaluated. In traditional and designated public forums, the government may exclude speakers on the basis of the content of their message "only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest." Cornelius v. NAACP Legal Defense and Educ. Fund, 473 U.S. 788, 105 S.Ct. 3439, 3448, 87 L.Ed.2d 567 (1985); Perry, 460 U.S. at 45, 103 S.Ct. at 955. The government may also enforce time, place, and manner restrictions in traditional and designated public forums if the regulations "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. By contrast, control over access to a nonpublic forum "can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral." Cornelius, 105 S.Ct. at 3451. Nevertheless, even in a nonpublic forum, the government violates the first amendment when it denies access to a speaker solely to suppress the point of view he or she espouses on an otherwise includible subject. Id.; United States v. Belsky, 799 F.2d 1485, 1489 (11th Cir.1986) (regulation restricting speech in a nonpublic forum must be reasonable and viewpoint neutral). See also M.N.C. of Hinesville, Inc. v. United States Dep't of Defense, 791 F.2d 1466, 1474 (11th Cir.1986) (content-based restrictions imposed in nonpublic forums fall into two categories: those that distinguish between the views of certain speakers and those that do not).

The district court rejected appellants' argument that Perry created an "insuperable bar" to appellees' claims and denied appellants' motion to dismiss. After granting the United States' motion to intervene as a party-defendant under Fed.R.Civ.P. 24(b), ⁵ the court proceeded to consider various motions for summary judgment and partial summary judgment. ⁶

Following oral argument on the pending motions, the court granted partial summary judgment for appellees and denied all other pending motions. ⁷ The court found that undisputed facts indicated that appellants had "created" public forums within the schools. At this stage of the proceeding, however, the court found that the public forums created were limited in two ways: (1) the created forums for expressive activity were restricted to guidance offices, bulletin boards, and career days; and (2) the subject matter of these designated forums was limited to speech regarding "career and educational opportunities" for students. The court indicated, however, that the "outer bounds" of the public forums created might extend beyond these limitations, but that the court "must wait until the facts are developed at trial before it can discern the outer contours of defendants' access policy."

The court further found that appellants' refusal to permit appellees to present information concerning career and educational opportunities related to peace at career days, and to place such information in guidance offices and on bulletin boards designated for such information, failed scrutiny under the test for regulations of speech in a created public forum. The court concluded that appellants' alleged interest in limiting access to speakers that had "jobs in hand" ⁸ and in preventing discussions of "any and all ideologies" ⁹ did not constitute compelling state interest under the Perry test. The court also rejected the United States' argument that the recruiting needs of the military constitute a compelling state interest that justifies granting preferential access to military recruiters and personnel. ¹⁰ In addition to finding no compelling state interest supporting appellants' access policy, the court found that the policy was not "narrowly drawn" in that there were no written standards to guide principals of the Atlanta schools in exercising their discretion to determine who will be granted access. Accordingly, the court preliminarily enjoined appellants from denying appellees an opportunity, substantially equal to that afforded military recruiters, to present peace-oriented educational and career opportunities to Atlanta public school students by placing literature on school bulletin boards and in the offices of school guidance counselors and by participating in career day programs.

We conclude that the district court should not have resolved at the summary judgment stage the constitutional question of whether appellants created a public forum. Determining what type of public forum exists requires development of the relevant facts that bear upon the character of the property at issue. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 44, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983) ("[E]xistence of a right of access to public property and the standard by which limitations upon such a right must be evaluated differ depending on the character of the property at issue."); Cornelius v. NAACP Legal Defense and Educ. Fund, 473 U.S. 788, 105 S.Ct. 3439, 3449, 87 L.Ed.2d 567 (1985) ("Court has looked to the policy and practice of the government to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum.").

Factual questions remaining in this case preclude determining whether appellants have created any public forums. The district court noted that defining the "outer bounds" of the public forums created "is difficult at this stage of the litigation because defendants have not promulgated a written policy setting forth their criteria for granting access to these forums." The court also admitted that the extent to which appellees were denied access to youth motivation days was unclear on the present record and that appellants' access policy as to those days "may be relevant in ascertaining the degree to which defendants have opened the other relevant forums to expression by outside entities." ¹¹ The factual uncertainties that may have a bearing on the resolution of the legal issues presented counsel against resolving the public forum issues at this stage. See City of Los Angeles v....