Student Coalition for Peace v. L. MERION SCH. D., Civ. A. No. 84-1017.

• Decision Date: 31 January 1985
• Docket Number: Civ. A. No. 84-1017.
• Citation: 618 F. Supp. 53
• Parties: STUDENT COALITION FOR PEACE v. LOWER MERION SCHOOL DISTRICT, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

618 F. Supp. 53

STUDENT COALITION FOR PEACE v. LOWER MERION SCHOOL DISTRICT, et al.

Civ. A. No. 84-1017.

United States District Court, E.D. Pennsylvania.

January 31, 1985.

Stephen F. Gold, Philadelphia, Pa., for plaintiff.

Thomas A. Masterson, Philadelphia, Pa., for defendants.

MEMORANDUM AND ORDER

JAMES McGIRR KELLY, District Judge.

Presently before me is plaintiff Student Coalition for Peace's (SCP) motion for reconsideration of the court's denial of its petition for a permanent injunction. Student Coalition for Peace v. Lower Merion School District, 596 F.Supp. 169 (E.D.Pa. 1984).

Plaintiff, in its motion for reconsideration, has brought to the court's attention, the Equal Access Act, P.L. No. 98-377 (August 11, 1984). As there has been no judicial interpretation of this Act, the matter before me is one of first impression.

The plaintiff, SCP, a student organization, sought the use of one of four locations on school property for the site of an anti-nuclear war rally and peace exposition. The public was invited to attend this rally. The SCP sought one of the following locations: Lower Merion High School's (LMHS) courtyard which surrounds the flagpole, Arnold Field, Pennypacker Field, or the LMHS Boys' Gym. All four locations are owned by the defendant Lower Merion School District, a public school system. In my Memorandum and Order of September 28, 1984, 596 F.Supp. 169, in accordance with the United States Supreme Court opinion in Perry Ed. Assn. v. Perry Local Education Assn., 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983), I held that all four locations were not public or limited public forums. Further, I held that the defendants'¹ denial of the use of the parcels by the student group for a peace exposition was rationally related to a legitimate governmental interest and that the denial was not based upon an intent to censor a particular point of view or the content of the speech. Student Coalition for Peace v. Lower Merion School District, 596 F.Supp. at 175. (The defendants did not want the LMHS's property to become a battleground of political thought for the community. Indeed, the plaintiff intends to invite the outside public to its exposition.)

The plaintiff contended at the hearing for a permanent injunction that because two of the locations desired had been used by other student groups, which also were permitted to invite the outside public, the defendants had converted these locations into public or limited public forums. For the sake of clarity here, I will reiterate my findings concerning these locations which are more fully set out at 596 F.Supp. 169 (E.D.Pa.1984).

(a) The LMHS's courtyard, which surrounds the flagpole, and Pennypacker Field—have never been used for any non-school sponsored event. Id. at 173-174.

(b) LMHS Boys' Gym—besides being a gymnasium, has been used for non-school sponsored events, but only by permission granted by the School Board. Id. at 174. The non-school sponsored events which have used the facility were primarily athletic and were initiated to raise funds for charity. However, although the fund raising events were non-school sponsored, student organizations were a force in establishing the events. The public was invited to attend the charity functions. Id. at 173-175.

(c) Arnold Field—has been used primarily by the school as an athletic field. Several times the school has permitted certain community oriented activities to take place on the field. These activities were primarily athletic activities, namely jog-a-thons and bike hikes, which were oriented to raising funds for various public charities. School students as well as the public were invited. Often times the students initiated these activities. Additionally, the school granted permission to the community to have its Memorial Day ceremonies on the field. Id. at 173-175. It must be noted, however, permission was not granted for every request made.

I turn now to the instant motion. Plaintiff contends that the Equal Access Act P.L. No. 98-377 (August 11, 1984) requires² a finding of a limited public forum at the LMHS Boys' Gym and Arnold Field.

The Equal Access Act states in pertinent part:

DENIAL OF EQUAL ACCESS PROHIBITED

Sec. 802(a). It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings.

(b) A public secondary school has a limited open forum whenever such school grants an offering to or opportunity for one or more noncurriculum related student groups to meet on school premises during noninstructional time.

(c) Schools shall be deemed to offer a fair opportunity to students who wish to conduct a meeting within its limited open forum if such school uniformly provides that—

(1) the meeting is voluntary and student-initiated;

(2) there is no sponsorship of the meeting by the school, the government, or its agents or employees;

(3) employees or agents of the school or government are present at religious meetings only in a non-participatory capacity;

(4) the meeting does not materially and substantially interfere with the orderly conduct of educational activities within the school; and

(5) nonschool persons may not direct, conduct, control, or regularly attend activities of student groups.

The Lower Merion School District is a public school system which inevitably receives some federal financial funding. Therefore, the Equal Access Act would apply to the school district. Equal Access Act § 802(a), supra. The SCP is a student organization which is not school sponsored. A student group is not school sponsored when it does not receive funding or supervision from the school. Indeed, the SCP is a noncurriculum related student group, however, it is assigned a faculty advisor.³ The SCP has not been hindered in expressing itself within the school community on school property. Student Coalition for Peace, 596 F.Supp. 169, 170 (E.D.Pa.1984). The dilemma here is that the plaintiff SCP seeks to have a public peace exposition on the school property at one of the above named locations. Therefore, nonstudents will be invited to this peace exposition. The school district seeks to keep the general public from turning school property into a podium for political debate. Thus, it has denied plaintiff's request.

The plaintiff contends that because the school district has permitted other non-school sponsored activities (noncurriculum related and initiated by students) which permitted the public to use Arnold Field and the LMHS Boys' Gym, the defendants have created a limited open forum under the Equal Access Act. Moreover, the plaintiff argues that because it only requests that outsiders be permitted to attend one meeting annually (the peace exposition), the restriction expressed in the Equal Access Act that nonschool persons may not regularly attend, is complied with. Equal Access Act § 802(c)(5) supra.

Plaintiff interprets § 802(c)(5), supra, as to infer that since a meeting within the limited open forum does not permit regular attendance of nonstudents, but does not expressly forbid occasional or irregular attendance by nonstudents, attendance by nonstudents cannot be forbidden. Further, plaintiff argues that because the school district allowed nonstudent attendance at certain charitable functions which were activities promoted by nonschool sponsored student groups at the Boys' Gym and Arnold Field, these two locations became limited open forums under the Equal Access Act. Specifically, plaintiff argues that § 802(b), supra, becomes operative at these two locations.

I do not read the statute broadly granting rights to outsiders, because of the express use of the limiting choice of the words used within the statute, namely, the word "student". Furthermore, the statute expressly states: denial of equal access is forbidden to students where a limited public forum exists. § 802(a), supra. However, I do not believe that plaintiff's arguments are so strained as to end my search for the meaning of the statute here.

Accordingly, the debate in Congress during its evaluation of this statute must be examined and scrutinized so as to find the legislative intent of the statute.⁴ This must be done to determine whether or not the purpose of the statute is to alter the characterization of public property for first amendment purposes as was enunciated by the Supreme Court in Perry, supra, and most importantly in the instant matter, whether or not the Equal Access Act requires that a public secondary school which receives federal financial assistance must permit attendance of non-students in a limited public forum (as defined within the Equal Access Act) within the school. The discussion in the House of Representatives led to the following rather clear comment as expressed between two congressmen, one of which was the principal co-sponsor of the bill (Congressman Goodling):

Mr. PEPPER. Mr. Speaker, will the gentleman kindly tell me whether the student groups that may have this access are limited to the sudents of the particular school, or may students come in from other schools?

Mr. GOODLING. It is very definitely limited to the students in the school. The administration determines that. They do not allow students to come in from other schools.

Mr. PEPPER. The language of the legislation does not say that.

Mr. GOODLING. I am sorry. I did not hear the gentleman.

Mr. PEPPER. The language of the legislation does not say that.

Mr. GOODLING. The language of the legislation says that all these decisions are local school board decisions. I do not know of any board that says that anybody who wants to come in from all over the world can just come in. We do not do that. We say that the local school district

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