The opinion of the court was delivered by: BECHTLE
Presently before the court is plaintiffs' Fed.R.Civ.P. 65 motion for a preliminary injunction. Plaintiffs' motion for a preliminary injunction will be granted, and in support thereof the court makes the following findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a).
The court has federal question jurisdiction under 28 U.S.C. § 1331 by reason of claims alleged to be based on 42 U.S.C. § 1983.
The narrow question before the court is whether, at this stage, under the specific facts of this case, plaintiffs are entitled to declaratory injunctive relief under 42 U.S.C. § 1983 against the defendants which would allow the plaintiffs to present on Saturday, October 31, 1987, at the auditorium of the William Tennent High School located in defendants' school district, a Halloween performance by Andre Kole, a magician/illusionist. The performance would include at the end of the 1 hour and 45 minute performance, a 15 minute presentation of an evangelical religious message by Andre Kole on his behalf and on behalf of his sponsor, Student Venture, which is the registered name of Campus Crusade for Christ International, Inc. ("Campus Crusade"), a non-profit organization.
Plaintiffs Greg Gregoire, David Urbany, Scott Irwin and Herman Dietsch
filed the above-captioned 42 U.S.C. § 1983 civil rights action seeking declaratory and injunctive relief. Plaintiff Student Venture is an evangelical Christian youth organization that is a subsidiary of or d/b/a Campus Crusade. Defendant Centennial School District (hereinafter "defendant") and defendant Ronald Y. White (hereinafter "defendant White"), in his official capacity as Supervisor of Secondary Education for the Centennial School District located in the Eastern District of Pennsylvania, have denied plaintiff Student Venture's application to rent and use the auditorium of the state-owned William Tennent High School ("the high school") for the evening of Saturday, October 31, 1987, Halloween. Plaintiff Student Venture has completed and filed the necessary application and conformed to all application requirements, including payment of all fees and charges, in order to rent the auditorium for a performance of world-renown illusionist/magician Andre Kole's ("Kole") "World of Illusion" show. Kole often appears as a special traveling representative for Campus Crusade. He performs his show and then, after the show, and following a brief intermission when anyone who chooses to leave may do so, he delivers his Christian evangelical message to those members of the audience who wish to remain to hear it.
On August 27, 1987, plaintiff Gregoire, the Director of plaintiff Student Venture for the Delaware Valley area (which includes the area covered by defendant), submitted to an employee of the high school defendant's form of "Application for Use of School Facilities" ("application") that his subordinate, plaintiff Richard Miller, had filled in and signed on June 8, 1987, together with plaintiff Student Venture's check in the amount of $ 1,379.63 which had been signed by plaintiff Gregoire and another individual. The application and the deposit check were for the rental of the high school auditorium for the performance in question.
On September 3, 1987, the principal of the high school, Kenneth D. Kastle, wrote plaintiff Miller: (1) informing him that the application and check were received; (2) inquiring about the religious content of Kole's program; and, (3) stating that any religious content would violate defendant's policy 6.2.B. paragraph 17. Policy 6.2.B. provides in pertinent part:
17. Pennsylvania law specifically prohibits the use of school facilities for religious services, instruction and/or activities.
Principal Kastle's September 3rd letter also contained, inter alia, the following request: "I must ask you to insure that no religious content will be included in the Andre Kole program." On September 4, 1987, plaintiff Gregoire submitted to an employee of the high school a copy of a certificate of insurance from Fireman's Fund Insurance Company for a $ 2 million liability policy for the proposed October 31, 1987 (Halloween) Kole performance at the high school. The certificate listed Campus Crusade as the insured and named William Pennent [sic] High School c/o Greg Gregoire/Student Ventur [sic] as additional insured. Gregoire testified he received Principal Kastle's letter dated September 3, 1987 on September 8, 1987. On September 11, 1987, defendant White wrote plaintiff Gregoire to officially deny plaintiff Student Venture's high school auditorium use application and return the deposit check. In the September 11th letter defendant White stated, inter alia :
I called you on Wednesday, September 9th, to discuss with you exactly what the program involved. You indicated that after the performance by Andre Kole, he would speak approximately 15 minutes sharing with the audience his "personal view with God." Such a performance would be in violation of our procedures regarding facility use, specifically prohibiting the use of school facilities for religious services, instruction, and/or activities.
Plaintiffs have asserted the following four causes of action in their Complaint, all of which they contend violate 42 U.S.C. § 1983: (1) violation of the Free Speech and Assembly Clause of the First Amendment; (2) violation of the Equal Protection Clause of the Fourteenth Amendment; (3) violation of the Free Exercise Clause of the First Amendment; and, (4) violation of the Establishment Clause of the First Amendment.
The basis of plaintiffs' first cause of action is that since defendant has created an "open forum" at the public school buildings in its district, its policy 6.2.B., and refusal to rent the high school auditorium to plaintiff Student Venture is speech content-based discrimination in violation of plaintiffs' free speech and assembly rights as guaranteed by the First and Fourteenth Amendments. Plaintiffs contend that defendant has created an "open forum" for free speech and assembly at its school facilities by renting them out to a wide assortment of groups from the community.