Planned Parenthood of Southern Nevada, Inc. v. Clark County School Dist.

• Decision Date: 11 October 1989
• Docket Number: No. 88-2659,88-2659
• Citation: 887 F.2d 935
• Parties: 56 Ed. Law Rep. 757, 17 Media L. Rep. 1065 PLANNED PARENTHOOD OF SOUTHERN NEVADA, INC., Plaintiff-Appellant, v. CLARK COUNTY SCHOOL DISTRICT; Members of the Board of School Trustees; individually and in their capacities as Trustees of the Clark County School District: Lucille Lusk; Dan Goldfarb; Patricia A. Bendorf; Virginia Brooks Brewster; Donald R. Faiss; Robert Forbus; Shirley Holst; Robert E. Wentz, individually and in his capacity as Superintendent of Schools; and the following Principals: Lanny R. Lund; A. Ray Morgan; Brian O. Fox; et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 935

887 F.2d 935

56 Ed. Law Rep. 757, 17 Media L. Rep. 1065

PLANNED PARENTHOOD OF SOUTHERN NEVADA, INC., Plaintiff-Appellant, v. CLARK COUNTY SCHOOL DISTRICT; Members of the Board of

School Trustees; individually and in their capacities as

Trustees of the Clark County School District: Lucille Lusk;

Dan Goldfarb; Patricia A. Bendorf; Virginia Brooks

Brewster; Donald R. Faiss; Robert Forbus; Shirley Holst;

Robert E. Wentz, individually and in his capacity as

Superintendent of Schools; and the following Principals:

Lanny R. Lund; A. Ray Morgan; Brian O. Fox; et al.,

Defendants-Appellees.

No. 88-2659.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 10, 1989.

Decided Oct. 11, 1989.

Roger K. Evans, Planned Parenthood Federation of America, New York City, for plaintiff-appellant.

Thomas J. Moore, Las Vegas, Nev., for defendants-appellees.

Appeal from the United States District Court for the District of Nevada.

Before CHAMBERS, WALLACE and WIGGINS, Circuit Judges.

WALLACE, Circuit Judge:

Planned Parenthood of Southern Nevada (Planned Parenthood) brought this action under 42 U.S.C. Sec. 1983 seeking declaratory and injunctive relief against the Clark County School District, members of its governing board, the superintendent of schools, and ten principals (collectively school district). Planned Parenthood charges that the school district's refusal to publish Planned Parenthood's advertisements in school-sponsored publications violates its right to freedom of expression guaranteed by the first amendment. Following a trial on stipulated facts, the district court ruled in favor of the school district. The district court had jurisdiction under 28 U.S.C. Secs. 1331 and 1343, and we have jurisdiction over this timely appeal

pursuant to 28 U.S.C. Sec. 1291. Because we conclude that the publications are a nonpublic forum and the restrictions on Planned Parenthood's advertisements are reasonable, we affirm.

I

Planned Parenthood is a not-for-profit corporation of the State of Nevada, and is an affiliate of Planned Parenthood Federation of America. Planned Parenthood conducts a family planning program that provides clinical, educational, and counseling services relating to reproductive health. The school district was created under Nevada law to control and supervise the education of all minor children within the public school district of Clark County, Nevada. The school district operates 15 high schools to which this action is limited.

The school district authorizes its high schools to publish newspapers, yearbooks, and athletic event programs. High school newspapers and yearbooks are published as part of the school district's curriculum. Newspapers are published as part of the Journalism I and Journalism II courses; yearbooks are published in Publications I and Publications II courses. These courses are taught by school district faculty members, and students receive grades and academic credit upon their completion. Athletic event programs are not published as part of any course curriculum.

The school district does not require its publications to contain advertising. Instead, it authorizes each of its high school principals to decide which publications at his or her school will accept advertising. The school district also grants high school principals discretion both to set guidelines for publishing advertising and to determine whether a proposed advertisement satisfies those guidelines. The school district's policy toward its publications is reflected in the following memorandum circulated to all high school principals by Daniel Hussey (Hussey memorandum):

A school has an important interest in avoiding the impression that it has endorsed a viewpoint at variance with its educational program. It is not at all unlikely that an advertisement may be viewed as school endorsement of its contents.

....

If a school publication does accept advertising, some categories of advertising may be excluded. Drug paraphernalia, or alcohol beverages advertisements, for example, may be viewed as encouraging action which might endanger the health and welfare of students. Advertisements which are libelous, vulgar, racially offensive, factually inaccurate, or of poor production quality (misspelled words, grammatical errors, etc.) may be excluded. Advertisements having explicit sexual content or overtones may be excluded. The courts have allowed wide latitude in proscribing material which, though not obscene, because of its sexual content is deemed inappropriate for minors.

If advertising is allowed which promotes one side of a controversial issue, advertisements promoting the opposing side of a controversy should be similarly accepted.

The foregoing is not meant to be an exhaustive, all inclusive listing of categories of advertising which may be limited in school district publications. Furthermore, this memo is not directing or recommending that particular types of advertising be restricted. The purpose of this memo is to provide guidance to principals as to what power over advertising in [Clark County] publications they possess. How their power is used is within their discretion.

Also relevant to principals' evaluation of advertisements is Nev.Rev.Stat. Sec. 389.065, enacted by the Nevada legislature in 1979. ¹ This statute regulates public education pertaining At various times during 1984 and 1985, Planned Parenthood submitted advertisements to the high schools in the district for publication in their newspapers, yearbooks, and athletic programs. The advertisements read as follows:

to the human reproductive system, related communicable diseases, and sexual responsibility. Pursuant to this statute, the school district enacted Policy 6123 and Regulation 6123, which largely tracked the statutory requirements. These provisions require, among other things, that sex education be taught only by a licensed teacher or school nurse.

PLANNED PARENTHOOD

OF SOUTHERN NEVADA, INC.

601 South Thirteenth Street

Las Vegas, Nevada 89101

Routine Gynecological Exams

Birth Control Methods

Pregnancy Testing & Verification

Pregnancy Counseling & Referral

Most of the publications rejected the advertisements.

At the commencement of this lawsuit, ten high schools did not have their own written policies to regulate advertisements other than those originating from the school district; five high schools did have written regulations. The written guidelines of the high schools are substantially identical. ² The guidelines provide that the individual high school reserves the right to deny advertising space to any entity that does not serve the best interests of the high school, the school district, and the community. A designated faculty member of the high school must approve all advertisements, and the high school will not accept lewd, vulgar, or obscene advertisements. The guidelines also proscribe the publication of advertisements for certain categories of products: X- or R-rated movies; gambling; alcoholic beverages; drug paraphernalia; and, significant to this action, birth control products and information.

Pursuant to the district court's pretrial order, the parties stipulated to the facts, waived the right to a further evidentiary hearing, and submitted the case for decision on the briefs. Relying in large part on San Diego Committee Against Registration and the Draft (CARD) v. Governing Board of Grossmont Union High School District, 790 F.2d 1471 (9th Cir.1986) (CARD ), the district court found that the school district's publications were limited public fora for advertisements lawfully available to high school age audiences; that, to the extent Planned Parenthood's advertisements were within the forum as thus defined, the school district would be required to publish the advertisements unless the school district could demonstrate a compelling governmental interest not to do so; and that the school district had demonstrated no such compelling interest. The court ordered the parties to confer and agree as to acceptable advertisements, or to submit to the court further evidence by which it could decide on the text of advertisements.

Before the district court took further action, the Supreme Court decided Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988) (Hazelwood ). On the basis of Hazelwood, the district court issued a second order finding that the school district's publications were nonpublic fora and that the refusal to accept Planned Parenthood's advertisements was reasonable. The district court reasoned that Hazelwood vitiated the precedential value of the majority's analysis in CARD and validated the dissent's approach. The district court entered judgment in favor of the school district. This appeal followed.

II

The issue presented is whether the school district violated the first amendment by refusing to publish in its school-sponsored publications the advertisements submitted by Planned Parenthood. The school district concedes that Planned Parenthood's advertisements are protected speech under the first amendment. This case does not require us to decide the extent, if any, Planned Parenthood's advertisements constitute commercial speech, which is accorded less protection than noncommercial speech. See Board of Trustees of the State University of New York v. Fox, --- U.S. ----, ---- - ----, 109 S.Ct. 3028, 3031-3035, 106 L.Ed.2d 388 (1989); Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico, 478 U.S. 328, 341, 106 S.Ct. 2968, 2976, 92 L.Ed.2d 266 (1986).

To resolve this appeal we must first identify the nature of the forum. See Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 797, 105 S.Ct. 3439, 3446, 87 L.Ed.2d 567 (1985) (Cornelius ). This inquiry presents a question of law which we review independently. See Hazelwood, 108 S.Ct. at 568-69; Cornelius, 473 U.S. at 802-06, 105 S.Ct. at 3448-51. Next, we must determine whether the...