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STUDENT COALITION v. LOWER MERION SCH. DIST.

September 28, 1984

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



The opinion of the court was delivered by: KELLY

 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.

 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 injunction *fn3" 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 Civic 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 categorized public property depending upon how the government permitted its use in the past. Indeed, the manner in which the property is categorized 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). *fn7" 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 Civic 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 ...

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