Gregoire v. Centennial School Dist.

• Decision Date: 22 June 1990
• Docket Number: 89-1692,Nos. 89-1658,s. 89-1658
• Citation: 907 F.2d 1366
• Parties: , 61 Ed. Law Rep. 845 GREGOIRE, Harry, Urbany, David, Irwin, Scott and Dietsch, Herman and Miller, Rich and Campus Crusade For Christ, Inc. v. CENTENNIAL SCHOOL DISTRICT and White, Ronald Y., in his official capacity as Supervisor of Secondary Education for the Centennial School District (Two Cases). Appeal of CENTENNIAL SCHOOL DISTRICT.
• Court: U.S. Court of Appeals — Third Circuit

Page 1366

907 F.2d 1366

59 USLW 2037, 61 Ed. Law Rep. 845

GREGOIRE, Harry, Urbany, David, Irwin, Scott and Dietsch Herman and Miller, Rich and Campus Crusade For Christ, Inc. v. CENTENNIAL SCHOOL DISTRICT and White, Ronald Y., in his official capacity as Supervisor of Secondary Education for the Centennial School District (Two Cases) Appeal of CENTENNIAL SCHOOL DISTRICT.

Nos. 89-1658, 89-1692.

United States Court of Appeals Third Circuit.

Argued Jan. 31, 1990.

Decided June 22, 1990.

John Phillip Diefenderfer, Stucker and Yates, Newton, Pa., Rodney A. Smolla (argued), Williamsburg, Va., for appellant Centennial School Dist.

Peter M. Hileman, Drake, Hileman & Davis, Doylestown, Pa., Jordan W. Lorence (argued), Cimron Campbell, Mark N. Troobnick, Washington, D.C., Wendell R. Bird, Law Office of Wendell Bird, Atlanta, Ga., for cross-appellants Harry Gregoire, David Urbany, Scott Irwin, Herman Dietsch, Rich Miller and Campus Crusade for Christ, Inc.

Before STAPLETON and MANSMANN, Circuit Judges and KOSIK, District Judge. ^*

OPINION OF THE COURT

MANSMANN, Circuit Judge.

In these cross appeals we are asked to resolve a direct conflict, of constitutional proportions, between a public school district and a religious organization, over the use of school facilities. The dispute comes

to us from a final order of the district court granting a permanent injunction which enjoined the Centennial School District from refusing to open the facilities of the William Tennent High School to groups wishing to engage in religious speech. Centennial appeals the grant of this permanent injunction, claiming that it is not constitutionally required to open its facilities and, in fact, is mandated by the establishment clause to exclude at least certain types of religious speech. The beneficiary of the permanent injunction ("Student Venture") cross appeals on the ground that the district court stopped short; it contends that the district court erred when it did not include worship and distribution of religious literature within the mandate of the injunction. Because we find that Centennial, by its policy and practice, created a designated open forum and that the establishment clause is not violated by Student Venture's use of the school facilities, we will affirm the grant of the permanent injunction and will remand this matter to the district court to modify the injunction to include these additional categories of speech.

I.

This dispute arose when Student Venture, an evangelical Christian Youth Organization which is a subsidiary of the Campus Crusade for Christ, Inc., was denied permission to rent the auditorium of the William Tennent High School for the evening of October 31, 1987. Student Venture sought use of the auditorium for a performance of a well-known illusionist/magician, Andre Kole. Kole often appears as a traveling representative for Campus Crusade. He performs and then, after an intermission when anyone may leave, he delivers an account of his investigation of the miracles of Christ and how his discovery that Jesus Christ was who he claimed to be changed the course of Kole's life.

The Centennial School District denied Student Venture's request to use the auditorium, citing School District Policy 6.2.D which stated that "Pennsylvania law specifically prohibits the use of school facilities for religious services, instruction, and/or religious activities." ¹ Student Venture then filed suit in the U.S. District Court for the Eastern District of Pennsylvania, claiming that denial of the use of the facility violated its first amendment freedoms of speech and assembly, the fourteenth amendment's equal protection clause, and both the free exercise and establishment clauses of the first amendment.

On October 28, 1987, the district court issued a preliminary injunction enjoining Centennial from refusing to rent public school facilities to groups or individuals solely because of the religious content of their speech. Centennial was also enjoined from refusing to rent to Student Venture and the Kole performance went forward on October 31st.

The district court's issuance of the preliminary injunction was based on the conclusion that Centennial had created an "open forum" for free speech and assembly at its school facilities by renting them to a wide range of community groups. Given this open forum, Centennial could not refuse to rent to a group solely because of the religious content of the group's message. Gregoire v. Centennial School District, 674 F.Supp. 172, 179 (E.D.Pa.1987) aff'd without opinion, Appeal of Centennial School Dist., 853 F.2d 917, 918 (3d Cir.1988).

On March 8, 1988, Centennial revised its guidelines for facilities use. The new policy purports to limit access to those organizations, groups, and activities which are compatible with the mission and function of the school system. The revised policy does not permit the use of high school facilities for religious services and imposes a ban on the distribution of religious literature.

On the ground that it would request use of the Centennial facilities again for religious purposes, Student Venture sought to have Centennial's facilities use policy enjoined Following the grant of injunctive relief, Student Venture filed a Motion for Clarification in the district court, asking that the court's order be amended to enjoin Centennial from prohibiting religious "worship" as well as religious "speech" and from barring distribution of religious literature at school facilities. On July 25, 1989, the district court denied this motion and Student Venture appeals.

and a permanent injunction issued prohibiting Centennial from preventing its access to school facilities based on the religious content of its message. The district court granted permanent injunctive relief on November 30, 1988, relying again on the open-forum analysis; Gregoire v. Centennial School District, 701 F.Supp. 103 (E.D.Pa.1988). Centennial appeals from this final injunctive order.

These appeals require that we resolve complex issues of constitutional law, balancing a claimed violation of first amendment rights against a substantial first amendment defense. Where, as here, the facts are not in dispute and the parties challenge the choice, interpretation, and application of legal precepts, our review is plenary. Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 101-02 (3d Cir.1981). Recognizing that our decision will have significant import for school districts throughout this circuit, we turn to the issues presented on appeal.

II.

There is no question that religious discussion and worship are forms of speech and association protected by the first amendment. Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981). There is also no question that Centennial seeks to exclude Student Venture and other religious organizations from its facilities based on the content of their speech.

We recognize at the outset that a school district is under no obligation to open its facilities to expressive activity by outsiders. "The state, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated." Perry Educ. Assn. v. Perry Local Educators' Ass'n., 460 U.S. 37, 46, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983). It is when the government opens facilities not generally available to the public that legal questions relating to equal access arise.

This established, we turn our focus to the issue at the very center of this litigation: what are the legal characteristics of the forum created by the school district at William Tennent High School? Limitations which the government may lawfully place on classes of speech vary, depending upon whether the relevant forum is determined to be a traditional open forum, a public forum created by government designation or a non-public forum.

The "traditional public forum" has been defined in terms of places such as streets or parks which "have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939). Regulation of speech in a traditional public forum must pass muster under a strict scrutiny analysis; the regulation must be narrowly drawn to serve a compelling state interest. Carey v. Brown, 447 U.S. 455, 461, 100 S.Ct. 2286, 2290, 65 L.Ed.2d 263 (1980).

A "designated open public forum" is created when public property is intentionally opened by the state for indiscriminate use by the public as a place for expressive activity. A state is not required to maintain the open character of the facility indefinitely. Perry, 460 U.S. at 46, 103 S.Ct. at 955. While the facility is open, however, content-based regulation of speech is subject to the same strict scrutiny analysis applied in the traditional public forum.

The third forum category recognized in the first amendment context is the "non-public forum." This forum exists when publicly-owned facilities have been dedicated to use for either communicative or non-communicative purposes but have Neither party before us argues that the William Tennent High School facilities constitute a traditional public forum. The parties join issue over whether Centennial has created a designated open forum, thus implicating strict scrutiny of its decision to exclude Student Venture, or whether it has, instead, maintained a closed forum in its high school facilities from which content-based exclusions may be made so long as there is some rational basis for the exclusion. Centennial argues that elementary and secondary schools occupy a unique status for purposes of the first amendment and that courts have been reluctant to characterize either as an open forum.

                never been designated for indiscriminate expressive activity by the general

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