Searcey v. Crim

• Decision Date: 13 August 1986
• Docket Number: Civ. A. No. C84-751A.
• Citation: 642 F. Supp. 313
• Parties: Emory SEARCEY, Tom Coffin, Zachary Coffin, Constancia Romilly, Chaka Forman, Anne Nicolson, Eric Carter, Donald Stone, John Storey, Flora Stone, and the Atlanta Peace Alliance, v. Alonso CRIM, Individually and in his official capacity as Superintendent of the Atlanta Public Schools and the Atlanta Board of Education United States of America, Intervenor.
• Court: U.S. District Court — Northern District of Georgia

642 F. Supp. 313

Emory SEARCEY, Tom Coffin, Zachary Coffin, Constancia Romilly, Chaka Forman, Anne Nicolson, Eric Carter, Donald Stone, John Storey, Flora Stone, and the Atlanta Peace Alliance, v. Alonso CRIM, Individually and in his official capacity as Superintendent of the Atlanta Public Schools and the Atlanta Board of Education United States of America, Intervenor.

Civ. A. No. C84-751A.

United States District Court, N.D. Georgia, Atlanta Division.

August 13, 1986.

Ralph Goldberg, Cooperating Atty. National Lawyers Guild, Atlanta, Ga., for plaintiffs; Jim Feldman, of counsel.

Allie S. Edwards, Fortson & White, Atlanta, Ga., Vince Garvey, DOJ, Civil Div., Myles Eastwood, Washington, D.C., for defendants.

ORDER

SHOOB, District Judge.

Plaintiffs in this First Amendment action are "peace activists," parents, students, and a teacher who challenge the Atlanta Board of Education's policy of granting military recruiters access to Atlanta public schools while denying similar access to peace activists. Plaintiffs seek an opportunity equal to the one afforded military recruiters to place their literature on school bulletin boards and in the offices of school guidance counselors and to participate in school "Career Days" and "Youth Motivation Days." Presently before the Court are motions for summary judgment and for partial summary judgment filed by plaintiffs, defendants, and the United States as intervenor-defendant.

For the reasons that follow, the Court concludes that defendants have violated plaintiffs' First Amendment rights and, therefore, that plaintiffs are entitled to partial summary judgment. At this time, however, the relief to which plaintiffs are entitled is more limited than some other courts have ordered at the summary judgment stage.¹ The Court will issue an injunction securing only plaintiffs' right to present information about peace-oriented educational and career opportunities to students by placing literature on school bulletin boards and in the offices of school guidance counselors and by participating in "Career Day" programs. The Court must defer until trial the question whether defendants have so opened the schools to outside expression that they must also allow plaintiffs to discuss more generally the merits of military service.

DISCUSSION

Because the primary mission of public schools is to educate students, the First Amendment does not prevent the Board of Education from limiting the use of school facilities solely to educational purposes. If, however, the schools choose to open their doors to expression by outside groups and individuals, they must do so under principles that are consistent with the First Amendment. See Widmar v. Vincent, 454 U.S. 263, 267-68 & n. 5, 102 S.Ct. 269, 273 & n. 5, 70 L.Ed.2d 440 (1981).

The First Amendment standards governing this case are set forth in Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983), and Cornelius v. NAACP Legal Defense and Educational Fund, Inc., ___ U.S. ___, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). In those cases, the Supreme Court classified public property used for the exercise of free speech rights into three types of "forums"; the government's power to regulate speech depends on which type of forum is involved.

The first category is the "traditional public forum," such as a street or park. To justify any content-based restriction on speech in a traditional public forum, the government must show that the restriction "is 1 necessary to serve a compelling state interest and is 2 narrowly drawn to achieve that end." Perry, 460 U.S. at 45, 103 S.Ct. at 955.

The second category has been termed the "public forum created by government designation,"² the "limited public forum,"³ or the "created public forum."⁴ In this category is public property that, although not historically open to the public for speech, has been intentionally opened by the state as a place for expressive activity. Perry, 460 U.S. at 45-46, 103 S.Ct. at 955; Cornelius, 105 S.Ct. at 3449. This type of public forum may be designated "for use by the public at large for assembly and speech,"⁵ or it may be created for a "limited purpose,"⁶ such as use by certain groups or speakers, or for the discussion of certain subjects. Perry, 460 U.S. at 46 n. 7, 103 S.Ct. at 955 n. 7; Cornelius, 105 S.Ct. at 3449. The same First Amendment protections apply to these "created public forums" as apply to traditional public forums: within the boundaries of the public forum or forums created, the government must show that any content-based regulation of speech is "narrowly drawn to effectuate a compelling state interest." Perry, 460 U.S. at 46, 103 S.Ct. at 955.

The third category of public property is the "nonpublic forum" — public property that is not a traditional public forum and that has not been opened by the state for public communication. Perry held that "the state may reserve the nonpublic forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is 1 reasonable and 2 not an effort to suppress expression merely because public officials oppose the speaker's view." Id.⁷

Plaintiffs do not argue that the school bulletin boards, guidance offices, Career Days and Youth Motivation Days⁸ constitute traditional public forums. Instead, they argue that the school system has created public forums by allowing the military and others access to these channels of communication. Plaintiffs further contend that even if no public forums have been created in the schools, defendants' policy is nonetheless unconstitutional because it is an effort to suppress plaintiffs' views.

It is undisputed that defendants have permitted various outside organizations to place literature in guidance offices and on bulletin boards and to participate in Career Days and Youth Motivation Days. Defendants themselves point out that military recruiters and other organizations seeking to present educational or career opportunities to students have been granted access to these forums. See Defendants' "Statement of Undisputed Material Facts" # 4, 5, 6, 10, 12, 13 (filed March 14, 1985 in support of defendants' motion for summary judgment). Moreover, defendants do not argue that they unintentionally opened these forums to outside organizations for the dissemination of information about career and educational opportunities. See Cornelius, 105 S.Ct. at 3448 (public forums are created only by intentionally opening a non-traditional forum to public discourse). The Court concludes that defendants have created public forums within the schools, at least for the purpose of presenting career and educational opportunities to students.

The scope of the public forums created by defendants may be even broader than described above because it appears that not all outside individuals or groups participating in Career Day programs address educational or career opportunities. See Lane Affidavit (filed April 5, 1985, in support of plaintiff's motion for summary judgment). Moreover, it also appears that the Youth Motivation Day⁹ program is not designed to provide information about career and educational opportunities. See Plaintiffs' "Statement of Undisputed Material Facts" # 21 (filed April 5, 1985, in support of plaintiffs' motion for summary judgment).¹⁰

Defining the outer bounds of the public forums created, however, 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 concludes that it must wait until the facts are developed at trial before it can discern the outer contours of defendants' access policy.

Having determined that defendants have created limited public forums, at least for the purpose of presenting career and educational opportunities to students, the Court turns to the other elements of the Perry analysis. Among the printed materials that plaintiffs sought to place in school guidance offices and on bulletin boards were materials describing career and educational opportunities relating to "peacemaking." See, e.g., exhibits B-6, B-7, and B-12 to plaintiff's February 14, 1985 motion for partial summary judgment. Plaintiffs have presented evidence that defendants completely denied plaintiffs access to guidance offices, bulletin boards, and Career Days, and defendants have not controverted this assertion.¹¹

Under Perry, defendants have the burden of establishing that this restriction of access to these limited public forums was (1) necessary to serve a compelling state interest and was (2) narrowly drawn to achieve that end. 460 U.S. at 45-46, 103 S.Ct. at 955.¹² Defendants, however, have not even articulated any interest that arguably could be considered a compelling state interest under First Amendment doctrine. Defendants attempt to distinguish the career and educational opportunities that plaintiffs seek to present from those which other organizations have been allowed to present as follows:

Access by outsiders to the Atlanta Public Schools' 22 high schools has accordingly been limited to college recruiters and employers with "jobs in hand." The plaintiffs ... do not seek access ... in order to fill concrete jobs which they are offering to high school students, nor does the Atlanta Peace Alliance seek to provide scholarship monies or grant monies to high school students in order that the students can go on to post high school educational settings.

Defendants' March 14, 1985 brief in support of defendants' motion for summary judgment at 10. The record demonstrates, however, that the "jobs in hand" distinction is a false one. Plaintiffs have presented evidence that at least some Career Day participants do not offer "concrete jobs" and do not have "jobs in hand." See Lane affidavit and plaintiffs' statement of "Undisputed Material Facts" # 21 (both filed April 5, 1985, in support of plaint...