wanting to use the system were required to seek permission from the school principal. Although some outside groups were permitted to use the mailing system, such selective access did not transform the system into a public forum. Id.
Shortly after the Supreme Court rendered its opinion in Perry, this court, through Chief Judge Nealon, confronted a situation somewhat analogous to the one in the case at bar. Bender v. Williamsport Area School District, 563 F. Supp. 697 (M.D.Pa. 1983), rev'd, 741 F.2d 538 (3d Cir. 1984), vacated, 475 U.S. 534, 106 S. Ct. 1326, 89 L. Ed. 2d 501 (1986), reh'g denied, 476 U.S. 1132, 106 S. Ct. 2003, 90 L. Ed. 2d 682 (1986).
In Bender a group of students was denied permission to meet at the defendant's high school for purposes of praying and reading the Bible. In the course of holding that the defendant's denial of access to the group was unconstitutional, the district court found that the school had created a limited public forum by establishing an activity hour in which over twenty other student groups participated. Bender, 563 F. Supp. at 706. The school had never denied access to any other group which sought to benefit from the activity period, and the school principal took the position that any "legal and proper" group would be granted access. Id. The court noted that a limited forum is one from which "outsiders" could be excluded without violating the first amendment. Id. at 705. The court also qualified its finding that the school had created a limited public forum with the recognition of the special order and discipline needs that a high school has. Because of these special needs, the court, relying on Tinker, ruled that a school may legitimately exclude an activity if it interfered with the school's work or with the rights of other students. Id. at 707.
Although the Third Circuit Court of Appeals reversed the decision of the district court in Bender, the appellate court did agree that the high school had created a limited public forum, access to which was restricted to students of the high school. Bender, 741 F.2d at 549. In a more recent case, however, the Third Circuit Court held that a school athletic field had not been transformed into a public forum by the defendant school district. Student Coalition for Peace v. Lower Merion School District, 776 F.2d 431, 436 (3d Cir. 1985). The Lower Merion School District had allowed various non-school organizations to use its athletic field but denied access to the field to a student group which desired to conduct a "Peace Fair" on the field. Because it was the policy of the school district to require organizations to request permission before using the field, and because such permission was not granted of course, the Third Circuit Court found that the school district had not designated the field as a public forum. Id.
In the case at bar plaintiffs assert, and defendant does not dispute, that defendant ". . . has adopted a policy of allowing students at [Antietam Junior High School] to engage in various noncurriculum related activities. Included among these, students are allowed to choose from 29 various student clubs which meet twice each week during non-instructional time at the end of the school day." Plaintiffs' Statement of Undisputed Material Facts at para. 16. There is nothing in the record which indicates that access to the facilities at Antietam has ever been denied to a student group wanting to meet during the time set aside for student activities. There is no evidence which shows that permission to meet is not granted to student groups as a matter of course. Further, an undisputed assertion in plaintiffs' amended complaint indicates that the nature of the student groups in existence is fairly diverse,
which supports an inference that permission to use the school's facilities has not been limited to groups having a specific subject matter. On the other hand defendant has enforced a policy which prohibits parties who are not students from distributing literature in the school which is not school-sponsored. See Defendant's Statement of Undisputed Material Facts at para. 21 and Plaintiff's Amended Counterstatement of Undisputed Material Facts at para. 20.
Applying the opinions summarized above to the facts in the instant case, the court finds that defendant has created a limited public forum at Antietam Junior High School. The forum is limited in that access thereto is restricted to student groups, such as was the case in Widmar and Bender. Although permission may be required for use of the facilities by student groups during the time set aside for student activities, the fact that there is no indication that permission is not granted as a matter of course distinguishes this case from Perry Educators' Ass'n. and Student Coalition.
3. Review of the Restrictions Under the Appropriate Constitutional Standard
In Tinker, 393 U.S. 503, 21 L. Ed. 2d 731, 89 S. Ct. 733, the Court stated that "in the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views." Id. at 511. A constitutionally valid reason for the regulation of speech would exist if the forbidden speech "materially disrupts classwork or involves substantial disorder or invasion of the rights of others. . . ." Id. at 513. On the other hand fear that expression of an unpopular viewpoint may cause a disturbance or create discomfort is not a constitutionally valid reason for regulating speech:
. . . In our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority's opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago, 337 U.S. 1 [93 L. Ed. 1131, 69 S. Ct. 894] (1949); and our history says it is this sort of hazardous freedom -- this kind of openness -- that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.