political speech of any kind, no matter what the view point.
Defendants have argued that the fact that a charitable or athletic event takes place on certain parcels does not require a political event be allowed on these same parcels. The plaintiff has taken a contrary position. Plaintiff contends that the Equal Access Act expands first amendment rights to free speech.
At first blush it appears that Congress was attempting to expand the application of the Supreme Court's decision in Widmar v. Vincent, 454 U.S. 263 (1981) rather than expand the concept of a limited public forum when it drafted the Equal Access Act.
However, after further analysis I find Congress sought also to prohibit the denial of noncurricular related student groups' meetings on the basis of subject matter, namely as to religious, political, philosophical, or other content of the speech. 20 U.S.C. § 4071(a). Thus, I find that Congress did, by enacting the Equal Access Act, afford students the right to use school property beyond the constitutional guarantees in the first amendment.
CONCLUSIONS OF LAW
1. Plaintiff had the burden to establish the LMSD created limited open forums pursuant to 20 U.S.C. § 4071(b).
2. Plaintiff failed to come forward with any evidence that a limited open forum was created by LMDS at Arnold Field or the courtyard which surrounds the flag pole.
3. Pennypacker Field is not a limited open forum, 20 U.S.C. § 4071(b) because of the intent of the LMSD to allow the 1985 Activities Fair on the field.
4. The LMSD has created a limited open forum at the Boys' Gym.
5. The SCP is a non-curricular related student group.
6. The anti-nuclear peace exposition the SCP seeks to have on Saturday, May 10, 1986, will not substantially or materially interfere with the orderly conduct of educational activities at LMHS.
7. The general public does not regularly attend SCP's meetings.
8. Defendants have prohibited the SCP from exercising their rights as to access to the Boys' Gym pursuant to the Equal Access Act.
9. SCP does not have an adequate remedy at law.
While I find that it is appropriate here to enjoin the LMSD from denying the use of the Boys' Gym to the SCP, this does not prohibit the LMSD from protecting its property by reasonable regulations. In an earlier hearing, certain witnesses for the defendants expressed concern that allowing use of the gym by people in "street shoes" would damage the floor. See also, paragraph 23 of the complaint. Defendants may seek assurances from plaintiff so that damage does not result. Cf. 20 U.S.C. § 4071(d)(3) ("Nothing in this subchapter shall be construed to authorize the United States or any State or political subdivision thereof -- . . . . (3) to expend public funds beyond the incidental cost of providing the space for student-initiated meetings.")
An appropriate order follows.
AND NOW, this day of April, 1986, upon consideration of plaintiff's amended petition for an injunction and defendants' response thereto, and after reviewing the briefs and documents the parties have submitted for my consideration, and after conducting an evidentiary hearing in this matter, it is ORDERED that:
1. Plaintiff's amended petition for an injunction is GRANTED in the following manner. Defendant Lower Merion School District is enjoined from prohibiting the SCP from conducting its anti-nuclear peace exposition in the Boys' Gym on Saturday, May 10, 1986.
2. All other relief sought by plaintiff is DENIED.