941 F.2d 817 (9th Cir. 1991), 88-2659, Planned Parenthood of Southern Nevada, Inc. v. Clark County School Dist.

Docket Nº:88-2659.
Citation:941 F.2d 817
Party Name:PLANNED PARENTHOOD OF SOUTHERN NEVADA, INC., Plaintiff-Appellant, v. CLARK COUNTY SCHOOL DISTRICT, Members of the Board of School Trustees, individually and in their capacity as Trustees of the Clark County School District: Lucille Lusk, Dan Goldfarb, Patricia Bendorf, Virginia Brooks Brewster, Donald R. Faiss, Robert Forbuss, and Shirley Holst; Ro
Case Date:August 05, 1991
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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941 F.2d 817 (9th Cir. 1991)

PLANNED PARENTHOOD OF SOUTHERN NEVADA, INC., Plaintiff-Appellant,

v.

CLARK COUNTY SCHOOL DISTRICT, Members of the Board of School

Trustees, individually and in their capacity as Trustees of

the Clark County School District: Lucille Lusk, Dan

Goldfarb, Patricia Bendorf, Virginia Brooks Brewster, Donald

R. Faiss, Robert Forbuss, and Shirley Holst; Robert 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

August 5, 1991

Argued and Submitted Oct. 18, 1990.

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[Copyrighted Material Omitted]

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Roger K. Evans, Planned Parenthood Federation of America, New York City, Mark Brandenburg, Las Vegas, Nev., 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 WALLACE, Chief Judge, CHAMBERS, GOODWIN, HUG, PREGERSON, ALARCON, POOLE, NORRIS, WIGGINS, FERNANDEZ and RYMER, Circuit Judges.

RYMER, Circuit Judge:

This case raises the same concern addressed by the United States Supreme Court in Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988): the extent to which educators may exercise editorial control over the contents of high school publications.

In Hazelwood, a high school principal declined to publish two student articles which he believed were inappropriate in a school-sponsored newspaper. The Court held that when school facilities, such as publications, have been reserved for intended educational purposes, school officials may regulate their contents in any reasonable manner; that a school, in its capacity as publisher, has authority to refuse to associate the school with any position other than neutrality on matters of political controversy; and that it was reasonable for a high school principal to control student expressive activities that he concluded were unsuitable for publication on account of their subject matter, given the youth of the audience, and lack of opportunity for third-parties to respond.

In this case, high school educators who permit advertisements in school-sponsored publications declined to accept advertisements for the services of Planned Parenthood in student newspapers, yearbooks and athletic programs. The schools believed publishing the advertisements might implicate their classes on sex education and put the school's imprimatur on one side of a controversial issue. The district court concluded that this is a Hazelwood case, and we agree.

Because both are school cases and the publications are school-sponsored, we do not write on a clean slate. Hazelwood instructs that we are to invest high school educators with greater control over expressive activities that bear the school's imprimatur than other forms of speech or use of government facilities. Thus, in striking a balance between the schools' interests and Planned Parenthood's, we must assume that school-sponsored publications are nonpublic and that unless the schools affirmatively intend to open a forum for indiscriminate use, restrictions reasonably related to the school's mission that are imposed on the content of school-sponsored publications do not violate the first amendment.

This case raises troubling issues because few things are so fundamental as our right to speak out, student or adult, pharmacist or Planned Parenthood. It is the more so because few things are so significant to our society, or reflect such deeply held and widely divergent views crying out for expression, as family planning, sex education, birth control and teenage pregnancy.

Yet "the education of the Nation's youth is primarily the responsibility of parents, teachers, and state and local officials, and

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not of federal judges." Hazelwood, 484 U.S. at 273, 108 S.Ct. at 571. We are not educators and curricular choices are not ours to make. We are not members of the Board of Education and it is not open to us as judges to decide this case as we might vote were we politicians. Our task is not to decide whether the message, or the messenger, is a menace or the messiah.

Rather, we must start with Hazelwood and the questions we must decide are these:

Are the publications in which Planned Parenthood wishes to advertise forums for public expression?

Do these school-sponsored publications bear the imprimatur of the school, such that they are within the intended purpose for which the forum is reserved?

Were school officials justified in refusing to accept the Planned Parenthood advertisement?

Before Hazelwood the district court found Planned Parenthood's first amendment rights were infringed. In light of Hazelwood it reconsidered and changed its ruling. In this it acted correctly, and we affirm.

I

Planned Parenthood of Southern Nevada (Planned Parenthood) brought suit under 42 U.S.C. § 1983 against the Clark County School District (school district) seeking declaratory and injunctive relief for an alleged deprivation of its first amendment rights. Planned Parenthood claims the school district violated its rights under the first and fourteenth Amendments by refusing to accept advertisements it submitted for publication in high school newspapers, yearbooks and athletic programs.

Planned Parenthood, a nonprofit corporation affiliated with Planned Parenthood Federation of America, is a family planning program that provides clinical, educational and counseling services for matters relating to reproductive health. The Clark County School District is a local school district, comprised of fifteen high schools, created under Nevada law to control and supervise the education of all minor children within the district.

The school district authorizes its high schools to publish newspapers, yearbooks and athletic programs. Newspapers and yearbooks are published as part of the school district curriculum. Newspapers are produced as part of Journalism I and II, while yearbooks are published in Publications I and II. These courses are taught by district faculty, and students receive grades and credit. Athletic programs are not produced as part of any particular course, but are distributed by the schools at school-sponsored events to inform spectators about the competition.

Principals are allowed to decide whether to accept advertising for these publications, to establish guidelines regulating acceptable advertisements and to determine whether a proposed advertisement satisfies the guidelines, if any. All of the schools but one accept advertising.

The school district's policy with respect to advertising is reflected in a memorandum from Daniel Hussey. 1 At the time of

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the suit, five schools had adopted written guidelines; eight promulgated them after the suit was begun, and two remain without guidelines. The guidelines typically provide that the school reserves the right to deny advertising space to any entity that does not serve the best interests of the school, the school district and the community. A faculty member, usually the principal, must approve all advertisements prior to publication. In addition to declaring that the school will not run any ads it deems lewd, obscene or vulgar, the guidelines note that advertisements for certain products will not be accepted: X- or R-rated movies, gambling aids, tobacco products, liquor products, birth control products or information, drug paraphernalia and pornography.

The school district also has enacted regulations dealing with "controversial issues," which provide in part, "No group or individual may claim the right to present arguments for or against any issue under study directly to students or to the class without authorization." Clark County School District Regulation 6124.2. Further, by statute, Nevada regulates instruction in the human reproductive system, related communicable diseases and sexual responsibility. Nev.Rev.Stat. § 389.065 (1987). Pursuant to this statute, the school district adopted Regulation 6123 which requires that sex education only be taught by qualified teachers and nurses, using only certain approved materials.

On numerous occasions between March 1984 and August 1985, Planned Parenthood submitted advertisements for publication in school district newspapers and athletic programs. The record does not show that Planned Parenthood submitted its advertisements to any yearbooks prior to commencing this suit. Each ad offered routine gynecological exams, birth control methods, pregnancy testing and verification, and pregnancy counseling and referral. 2 Most schools rejected the ad; one school continues to publish it.

Following trial on stipulated facts, the district court concluded that under 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), 3 the publications were limited public forums for advertisements lawfully available to high school audiences, and that without showing a compelling government interest, the school district would have to publish Planned Parenthood's advertisements to the extent they fell within the forum created. When the Supreme Court thereafter decided Hazelwood, the district court withdrew its order and on reconsideration found that the publications were nonpublic forums and the exclusions reasonable. Planned Parenthood appealed the district court's judgment in favor of the school district. The panel affirmed, Planned Parenthood v. Clark County School District, 887 F.2d 935 (9th Cir.1989), and we took the matter en banc.

II

The parties agree that Planned Parenthood's advertisements are protected speech under the first amendment. Therefore we must first resolve whether the school newspapers, yearbooks...

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