The opinion of the court was delivered by: KELLY
Presently before me is plaintiff Student Coalition for Peace's (SCP) motion for a permanent injunction. SCP is a non-school sponsored student organization of the Lower Merion High School (LMHS). SCP seeks to conduct a public anti-nuclear exposition on certain parcels of the LMHS's property. The Lower Merion School District (LMSD) and other defendants
have refused to grant permission to the SCP to use any parcel. On March 22, 1984, in an abundance of caution, I granted a preliminary injunction prohibiting the LMSD from denying the use of its property to SCP. I denied the permanent injunction on September 28, 1984, 596 F. Supp. 169, after further study of the constitutional issues. Subsequently, SCP made a motion for reconsideration, bringing to the attention of the court a recently enacted statute, the Equal Access Act, 20 U.S.C. § 4071. In a Memorandum dated January 31, 1985, 618 F. Supp. 53, I held that the Equal Access Act did not apply because the SCP desired to invite nonstudents to its exposition, and "it ha[d] not been the policy or practice of the [LMHS] to indiscriminately permit the use of the facilities in question to other noncurricular related student groups which desired to invite nonstudents/the general public." Id. at 60. (emphasis added).
SCP appealed my rulings. The Third Circuit Court of Appeals affirmed the ruling of September 28, 1984 concerning the constitutional questions presented, but vacated the ruling of January 31, 1985 and remanded it for a further evidentiary hearing. 776 F.2d 431.
The Third Circuit in vacating the January 31, 1985 ruling held:
The legislative history supports the view that if the school's limited open forum includes nonstudent participation, then nonstudent participation must be permitted for all such student groups, subject only to reasonable, nondiscriminatory regulation.
We read the Act to give affected school districts a choice; either to create a limited open forum open to all student groups on an equal basis, or to refuse access to all noncurricular student groups.
On remand, the appellants should have the opportunity to prove that the appellees' policy or practice after August 11, 1984 with respect to noncurricular student groups created a limited open forum broad enough to include the contemplated use.
Id. at 442-443 (footnotes omitted).
The Third Circuit's holding remanding the case back before this court so that evidence could be offered by plaintiff to establish that the parcel or parcels SCP desired for its use, have been used during noninstructional time by other noncurricular student organizations which invited the public to any of its functions since the enactment of the Equal Access Act. Indeed, the question this court is faced with is whether or not since the enactment of the Equal Access Act on August 11, 1984, the LMSD has created a limited open forum which includes nonstudents pursuant to 20 U.S.C. § 4071 at any of the parcels or locations the plaintiff has requested to use for its peace exposition.
On remand I allowed the plaintiff to file an amended complaint. The amended complaint incorporated the pleadings of the original complaint. In the original complaint plaintiff sought the use of one of the following sites for its antinuclear peace exposition: Arnold Field, Pennypacker Field, the courtyard surrounding the flag pole, and the Boys' Gym. Plaintiff, by its amended complaint, seeks to expand the list of sites it wishes to utilize for its antinuclear peace exposition. Plaintiff, in paragraph 5 of its amended complaint, asserts: "Since August 11, 1984, these noncurricular related student groups have met throughout the school premises, including but not limited to the gymnasium, auditorium, Pennypacker Field, parking lots and classrooms." In paragraph 6 plaintiff asserts: "Plaintiffs request to use the school's premises for a 'student sponsored and student run Educational Afternoon for Nuclear Disarmament' on Saturday, May 10, 1986." It appears that plaintiff seeks to expand the relief sought, namely by seeking additional parcels. At this stage of the litigation, amendment is only by leave of court. Fed. R. Civ. P. 15. While I consented to an amendment seeking relief pursuant to the Equal Access Act, at this juncture I do not find it appropriate that an amendment be permitted to name additional parcels of the school's grounds. Thus, I will restrict my review of the original four parcels named in the complaint.
A hearing was conducted on February 6, 1986. Pursuant to Fed. R. Civ. P. 52, the following are the findings of ...