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 school has permitted certain limited community activities to be held at the field. Special permission was granted to the Main Line Jaycees to hold a Special Olympics. The Special Olympics are a series of track and field events for handicapped children. Some LMHS students participated in various capacities. No solicitation of funds or distribution of literature occurs at the Olympics. Annually, Memorial Day ceremonies are permitted at the field. Indeed, it is an activity which memorializes those who have given their lives in war time. A "Bike Hike" for mentally handicapped citizens in which participants get sponsors who then donate sums of money to the Montgomery County Associates for Retarded Citizens depending on the mileage and American Cancer Society's "Jog-A-Thon" have been permitted to take place at the field. The "Jog-A-Thon", which is similar to the "Bike Hike" helps raise funds for the American Cancer Society. However, permission has not been freely granted. SCP's request of one year ago was denied. A parochial school's request to use the field for its school activities has been rejected, and a request to use the field for a day camp similarly has been rejected among others. See Transcript March 22, 1984, 174-75 (Pugh).
3. Pennypacker Field -- It has not been used for any non-school sponsored activity. Indeed at the hearing for a permanent injunction, plaintiff admitted there was no evidence showing its use for non-school sponsored activities.
4. LMHS's Boys Gym5 -- A Volleyball Marathon has been held annually since 1969. The marathon is organized by students; the general public is invited. Each year the organizers have sought permission from the School District. The marathon is a charitable event in which participants solicit pledges from the community for each hour of volleyball played. Proceeds are donated to various national/international organizations which feed hungry children throughout the world. No solicitation of funds or distribution of literature occurs at the marathon.
The parties do not dispute that the parcels in question do not fall within the first category (traditional forums) of public property, that is, public property which is generally characterized by public streets, parks and sidewalks. See Plaintiff's Memorandum of Law in support of a permanent injunction at 4-6.
Therefore, the issues that this Court must address are: whether or not the defendants have created a limited public forum at each of the locations. If a limited forum is found then the proper test is whether the proposed activity falls within the area protected; and if so, whether the state has a compelling interest, closely tailored to effectuate its purpose to overcome plaintiff's first amendment right to free speech. If a limited public forum is not found (therefore, it is a non-public forum) or if the activity falls outside a limited forum's parameter, the issue is merely whether the restrictions by the School Board have a rational basis and are not the product of censoring because of plaintiff's views. Perry, supra. See Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 104 S. Ct. 2118, 80 L. Ed. 2d 772 (1984).
We must first review the activities at each location to determine whether it is a limited public forum or non-public forum because such determination rests primarily upon the facts. For the purpose of clarity the Court will first categorize Pennypacker Field and the LMHS's Courtyard. Neither of these locations have ever been used for any organized activity. Certainly plaintiff's argument that there is limited access must fail on these clear facts. The fact that individuals have visited these locations from time to time, for their recreation, does not mean that the defendants have surrendered their control over the property, nor does it mean that the grounds become a public or limited public forum. Greer, 424 U.S. 828, 96 S. Ct. 1211, 47 L. Ed. 2d 505; Perry, 460 U.S. 37, 103 S. Ct. 948, 74 L. Ed. 2d 794.
The Supreme Court has held that the restraints on speech in non-public forums is more relaxed than in public forums. The standard is not a compelling state interest, which the state must show to effectuate a prior restraint. Rather the standard to apply is a reasonable regulation as long as it is not used to suppress the speaker's viewpoint. Perry, 460 U.S. at 46, 103 S. Ct. at 955. In the present case, the School District simply desires to keep the "podium of politics off school grounds." Indeed, the Third Circuit has recently stated:
Since elementary and secondary schools, unlike universities, are not the academic battleground for clashes among contending lines of thought, particularly since the level of student maturity rarely reaches the more advanced level of those attending college, it is unlikely that school authorities would seek to create a truly open forum in a high school environment for unregulated dialogue and inquiry. Because of the inherent nature of a secondary school, any forum created has purposes which are narrower, and uses more exclusive than a forum such as in Widmar or one open generally to all forms of communication by the public.