Student Coalition for Peace v. Lower Merion Sch. D.

• Decision Date: 28 September 1984
• Docket Number: Civ. A. No. 84-1017.
• Citation: 596 F. Supp. 169
• Parties: STUDENT COALITION FOR PEACE v. LOWER MERION SCHOOL DISTRICT, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

596 F. Supp. 169

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

Civ. A. No. 84-1017.

United States District Court E.D. Pennsylvania.

September 28, 1984.

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

Thomas Masterson, Philadelphia, Pa., for defendants.

MEMORANDUM AND ORDER

JAMES McGIRR KELLY, District Judge.

Presently before this court is plaintiff Student Coalition for Peace's (SCP) request for a permanent injunction. Plaintiff seeks to permanently enjoin the defendants, Lower Merion School District and Board of School Directors from prohibiting plaintiff from using various school facilities for the express purpose of conducting a public anti-nuclear/peace exposition.

The facts of this case are rather clear and uncontested. SCP is a group of students enrolled in Lower Merion High School (LMHS). SCP is active in the school by holding meetings in school classrooms and handing out leaflets, as well as other means of expressing itself within the school.

LMHS, a public school, has certain school sponsored organizations, e.g., athletics, dramatics, etc, which are funded and/or supervised by school officials. Conversely, the school has other nonsponsored organizations which are organized by students, but which receive no funds or supervision from the school. SCP receives no funds nor is it given supervision from the school although it does have a faculty advisor. Therefore, SCP falls into the "non-sponsored" organization category. There has been no evidence brought forth by the parties in this action which shows that SCP's "in school" activities have been hindered in any way.

In December of 1983, SCP requested permission from the LMHS's principal to use Arnold Field for a peace exposition.¹ This exposition was to include various outside speakers who were expected to discuss the various political position on disarmament.² The public at large would be encouraged to attend and participate. The request was denied. Subsequently, SCP appealed the denial of the use of Arnold Field to the school superintendent, and requested in the alternative the use of Pennypacker Field or the LMHS's Boys' Gym. The appeal and alternate forums were denied. SCP, appearing at the School Board of Directors' Meeting on February 13, 1984, appealed the denial of the use of any of the three sites. SCP additionally requested a fourth alternative, the School Courtyard surrounding the flagpole. Subsequently, on February 27, 1984, this last appeal and alternative were denied by the School Board. However, in the spirit of compromise the School Board offered the use of LMHS's Auditorium. SCP rejected the counter proposal because it believed that it would not permit the required interaction of the people attending the exposition.

The event required several weeks of planning and publicity and had been scheduled for Saturday, April 28th. Since time was critical, SCP sought a preliminary injunction enjoining the School District from denying it use of one of the forums. SCP asserts that its first amendment right of free speech applicable to the states through the fourteenth amendment had been curtailed as a result of the School Board's denial. A hearing was held on March 20-22, 1984. In this Court's overabundance of caution it granted a preliminary injunction³ on March 22, 1984, enjoining defendants from denying plaintiff's request to use one of the desired locations for its exposition. The defendants permitted the event to take place at the LMHS Boys' Gym. The event was attended by approximately 100 people. The speakers' topics ranged from nuclear disarmament to criticism of the present foreign policy of the United States Government.

Except for the Boys' Gym, which is an indoor facility, the other locations which are out of doors cannot be effectively and reasonably kept under lock and key. Hence, plaintiff's argument that because on occasion the public uses the parcels in question for unorganized/leisure activities, the defendants have surrendered their right to exclude organized activities, must fail. The plaintiff argues that the School District has permitted two of the facilities in question (Boys' Gym; Arnold Field) to be used on a case-by-case basis for an extremely limited purposes. Therefore they argue, it must follow that any activity must be permitted.

The United States Supreme Court in Perry Ed. Assn. v. Perry Local Education Assn., 460 U.S. 37, 44, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983) stated: "Nowhere have we suggested that students, teachers, or anyone else has an absolute constitutional right to use all parts of a school building or its immediate environs for ... unlimited expressive purpose. citing Grayned v. City of Rockford, 408 U.S. 104, 117-118, 92 S.Ct. 2294, 2304, 33 L.Ed.2d 222 (1972)." Cf. Greer, et al. v. Spock, et al., 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976) (no right to make political speeches at military base). International Society for Krishna Consciousness, Inc. v. N.J. Sports & Exposition Authority, 691 F.2d 155 (3d Cir.1982) (Religious group prohibited from soliciting funds outside publicly owned race track). Seyfried v. Walton, 668 F.2d 214 (3d Cir.1981) (no right for students to produce musical play of their choice). The differences between the parties center on how the property is classified for first amendment purposes. The United States Supreme Court has held a number of times that: "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", citing Adderley v. Florida, 385 U.S. 39, 48, 87 S.Ct. 242, 247, 17 L.Ed.2d 149 (1966); Greer, et al. v. Spock, et al., 424 U.S. 828, 836, 96 S.Ct. 1211, 1216, 47 L.Ed.2d 505 (1976); United States Postal Service v. Council of Greenburgh Civil Assoc., 453 U.S. 114, 129, 101 S.Ct. 2676, 2685, 69 L.Ed.2d 517 (1981).

In Perry, supra, the United States Supreme Court catagorized public property depending upon how the government permitted its use in the past. Indeed, the manner in which the property is catagorized determines the restraints permitted on speech.

In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the State to limit expressive activity are sharply circumscribed. At one end of the spectrum are streets and 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. C.I.O., 307 U.S. 496, 515 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939). In these quintessential public forums, the government may not prohibit all communicative activity. For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. Carey v. Brown, 447 U.S. 455, 461 100 S.Ct. 2286, 2290, 65 L.Ed.2d 263 (1980)....

A second category consists of public property which the State has opened for use by the public as a place for expressive activity. The Constitution forbids a State to enforce certain exclusions from a forum generally open to the public even if it was not required to create the forum in the first place. Widmar v. Vincent, 454 U.S. 263 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) (university meeting facilities); City of Madison Joint School District v. Wisconsin Public Employment Relations Comm'm, 429 U.S. 167 97 S.Ct. 421, 50 L.Ed.2d 376 (1976) (school board meeting); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975) (municipal theater).7 Although a State is not required to indefinitely retain the open character of the facility, as long as it does so it is bound by the same standards as apply in a traditional public forum. Reasonable time, place, and manner regulations are permissible, and a content-based prohibition must be narrowly drawn to effectuate a compelling state interest. Widmar v. Vincent, supra 454 U.S. at 269-270 102 S.Ct. at 274.

Third Category

Public property which is not by tradition or designation a forum for public communication is governed by different standards. We have recognized that the `First Amendment does not guarantee access to property simply because it is owned or controlled by the government.' United States Postal Service v. Council of Greenburgh Civil Assns., supra 453 U.S. at 129 101 S.Ct. at 2685. In addition to time, place, and manner regulations, the State may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view.

7 A public forum may be created for a limited purpose such as use by certain groups, e.g., Widmar v. Vincent (student groups), or for the discussion of certain subjects, e.g., City of Madison Joint School District v. Wisconsin Public Employment Relations Comm'n (school board business).

Perry Ed. Assn. v. Perry Local Educators' Assn, 460 U.S. at 45-46, 103 S.Ct. at 954-955.

Consistent with Perry, it is paramount that the various uses and activities performed in the past at the location requested be fully understood.⁴ Therefore, the Court's analysis must lead to scrutinizing the facts as applied to the locations individually. The plaintiff sought the use of the following locations:

1. LMHS's courtyard which surrounds the flagpole — The use of this courtyard has never been requested by any other organization, nor has any organized activity been held there. The courtyard is unguarded and unenclosed. At the hearing plaintiffs admitted they produced no evidence that this facility was ever used by any nonsponsored school activity.

2. Arnold Field — It is used by the school in the capacity of providing an area for organized and supervised athletic activities. In a few instances the...