Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civ. No. 84-1017).
Before SEITZ, BECKER, and ROSENN, Circuit Judges.
Appellant Student Coalition for Peace, a student organization at Lower Merion High School, appeals from the district court's denial of its request for a permanent injunction ordering the appellee School Board to permit it to use school property for a "Peace Fair." Appellant rests its claim on the First Amendment and the recently-enacted Equal Access Act, 20 U.S.C.A. §§ 4071 et seq. (Supp. 1985). We have jurisdiction by virtue of 28 U.S.C. § 1291 (1982).
The Student Coalition for Peace (SCP) is a student organization at Lower Merion High School (LMHS), dedicated to the cause of world peace through nuclear disarmament, and in particular through a bilateral nuclear freeze. In early 1983, SCP members requested permission of Robert Ruoff, principal of LMHS and a defendant here. to use an athletic field on school premises, known as Arnold Field, for a Peace Fair.*fn1 Ruoff refused the request. After unsuccessful appeals to the School Superintendent and the Lower Merion Board of School Directors (the Board), both defendants here, SCP held a Peace Fair on April 30, 1983 at another field not under the Board's jurisdiction, approximately five miles from LMHS.
Arnold Field has been regularly used for nonschool sponsored community events. A Memorial Day service has been held on the field each year since 1945, a service that includes speeches and ceremonies honoring the Nation's war dead. The field has also been sued for a Special Olympics for handicapped children, and a "Bike Hike" to benefit the mentally retarded, the latter under the sponsorship of a LMHS student organization. The field, which is fenced but unlocked, is also used regularly without permission by members of the community for jogging, bicycle riding, picnics, and similar activities. The district court found that the school had in the past also rejected requests to sue the filed by nonschool sponsored groups.
In December 1983, SCP again asked Ruoff for the use of Arnold Field for a second Peace Fair, to be held on April 28, 1984. This fair, like the last, was to be open to the public. Planned activities included speakers on the subjects of peace and nuclear disarmament, distribution of literature, and various forms of entertainment. Ruoff again denied the request, stating in a letter that "the intended use is not deemed appropriate under the policy of the Lower Merion Board of School Directors. Arnold Field is to be used for athletic or governmental purposes."
SCP appealed Ruoffs decision to Dr. James Pugh, the school superintendent. The SCP letter to Dr. Pugh stated that the organization would also be satisfied with the use of Pennypacker Field--another athletic filed on the LMHS premises -- or the LMHS boys' gym. Dr. Pugh denied the request to sue any of the proposed sites. He stated that Arnold Filed was "limited to athletic or governmental events,: and that the limited use of Arnold Field is not a written policy but has been a long-standing practice of the Lower Merion School District." He also stated that SCP's request to use the boys' gym was denied because of the potential damage to the wooden gym floor. Finally, Dr. Pugh suggested that SCP discuss with Ruoff the possibility of using the LHMS auditorium and lobby for its fair.
SCP again appealed, this time to the Board. In a letter to the Board, SCP rejected the auditorium and lobby as suitable for the fair, apparently because it was too small and insufficiently open for the activities contemplated. SCP also reiterated its request to be permitted to use Arnold Field, Pennypacker Filed, or the boys' gym. The Board denied SCP's request to use any of the proposed sites, although it again offered to permit the group to use the school auditorium. Defendant Paul Heintz, President of the Board, justified the Board's decision on the grounds that the fair might create crowd control problems, and that the school was not an appropriate forum for a "political school was not an appropriate forum for a "political rally. "Heintz, an attorney, also expressed concern that permitting SCP to use any of the fields would legally disable the Board from rejecting other student requests to use the field.
SCP brought suit in the district court, seeking declaratory relief and preliminary and permanent injunctions ordering the Board and its codefendants to permit SCP to use one of the proposed outdoor sites or the boys' gym for the fair. The complaint was grounded solely on the First Amendment and 42 U.S.C. § 1983 (1982). After two days of hearings, the district court issued a preliminary injunction ordering the defendants to permit SCP to use one of the requested sites for the peace fair. Pursuant to the injunction, a Peace Fair was subsequently held in the LMHS boys' gym.*fn2
After further hearings on July 27, the district court entered judgment for the defendants on September 28, 1984, denying SCP's request for a permanent injunction. The court, following the analysis of the Supreme Court in Perry Educ. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 74 L. Ed. 2d 794, 103 S. Ct. 948 (1983), determined that none of the requested sites was either a traditional public forum or a public forum by designation. The court found further that the Board could reasonably permit "charitable" or non-controversial events such as the Special Olympics and the Bike Hike while excluding "political" events such as the Peace Fair. Finally, it found that the defendants had not acted with intent to discriminate against the viewpoint espoused by SCP.
SCP then moved in the district court for reconsideration. Based solely on facts already in evidence, it argued for the first time that the defendants' refusal to permit the Peace Fair to be held on school grounds violated the Equal Access Act, which the President had signed into law on August 11, 1984. On January 31, 1985, the court denied the motion. This appeal followed.
The analysis we follow in determining whether appellant shave a First Amendment right to sue Arnold Field is that set forth by the Supreme Court in Perry Educ. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 74 L. Ed. 2d 794, 103 S. Ct. 948 (1983), and more recently in Cornelius v. NAACP Legal Defense Fund, 473 U.S. 788, 105 S. Ct. 3439, 87 L. Ed. 2d 567 (1985). The Court has stated repeatedly that "the First Amendment does not guarantee access to property simple because it is owned or controlled by the government ." U.S. Postal Service v. Council of Greenburgh Civic Assns., 453 U.S. 114, 129, 69 L. Ed. 2d 517, 101 S. Ct. 2676 (1981). Instead, the right of access depends on the nature of the government property at issue.*fn3 If the property is a traditional or designated public forum, appellants can be excluded on the basis of the subject matter of their speech "only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest." Cornelius, 105 S. Ct. at 3448. If, however, the property sought to be used is not a public forum, "control over access. ..can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral." Id. at 3451.
We find slight merit in appellant's contention that Arnold Field constitutes a traditional public forum.*fn4 Traditional public fora -- of which streets and parks are the paradigmatic examples -- are those public spaces which have by long practice "been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Hague v. CIO, 307 U.S. 496, 515, 83 L. Ed. 1423, 59 S. Ct. 954 (1939). A traditional public forum has as its primary purpose to promote free public traffic and assembly. See International Society for Krishna Consciousness, Inc. v. New Jersey Sports and Exposition Auth., 691 F.2d 155, 160 (3d Cir. 1982); U.S. Southwest Africa/Namibia Trade & Cultural Council v. United States, 228 U.S. App. D.C. 191, 708 F.2d 760, 764-66 (D.C. Cir. 1983). Thus, not every place that permits free public access is for that reason a traditional public forum. Greer v. Spock, 424 U.S. 828, 836, 47 L. Ed. 2d 505, 96 S. Ct. 1211 (1976); United States v. Grace, 461 U.S. 171, 177, 75 L. Ed. 2d 736, 103 S. Ct. 1702 (1983).
Appellants conceded in the district court that Arnold Field is not a traditional public forum, and the district court so found. Assuming arguendo that appellants have not by their concession in the district court waived their right to raise the issue here, we agree with the district court. Arnold Field is, in the first instance, a school athletic field. Appellees' practice of permitting generous public access to the Filed did not change its primary function or otherwise convert it into a traditional public forum.
A public forum by designation differs from a traditional public forum in three respects. Perry, 460 U.S. at 45-46. First, property may be so characterized, not by virtue of its essential nature or purpose, but because the government has acted to open what would otherwise be a nonpublic forum for public use. Id.; Cornelius, 105 S. Ct. at 3449. Second, "a State is not required to indefinitely retain the open character of" a designated public forum, Perry, 460 U.S. at 46. Finally, a designated public ...