Page v. Lexington County School District One

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RANDALL S. PAGE, 

Plaintiff-Appellant,

v.

LEXINGTON COUNTY SCHOOL DISTRICT

ONE,

Defendant-Appellee.

VIRGINIA SCHOOL BOARDS

ASSOCIATION; SOUTH CAROLINA

SCHOOL BOARD ASSOCIATION; NORTH

CAROLINA SCHOOL BOARDS  No. 07-1697

ASSOCIATION; MARYLAND

ASSOCIATION OF BOARDS OF

EDUCATION; NATIONAL SCHOOL

BOARDS ASSOCIATION; NATIONAL

SCHOOL PUBLIC RELATIONS

ASSOCIATION; NATIONAL PARENT

TEACHER ASSOCIATION; NATIONAL

LEAGUE OF CITIES; AMERICAN

ASSOCIATION OF SCHOOL

ADMINISTRATORS,

Amici Supporting Appellee.



Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Cameron McGowan Currie, District Judge.

(3:06-cv-00249-CMC)

Argued: March 20, 2008

Decided: June 23, 2008

2 PAGE v. LEXINGTON COUNTY SCHOOL DISTRICT

Before WILLIAMS, Chief Judge, and NIEMEYER

and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the opinion,

in which Chief Judge Williams and Judge Duncan joined.

COUNSEL

ARGUED: Kevin Alan Hall, NELSON, MULLINS, RILEY &

SCARBOROUGH, L.L.P., Columbia, South Carolina, for Appellant.

David Thomas Duff, DUFF, WHITE & TURNER, L.L.C., Columbia,

South Carolina, for Appellee. ON BRIEF: Karl S. Bowers, Jr., Wil-

liam C. Wood, Jr., M. Todd Carroll, NELSON, MULLINS, RILEY

& SCARBOROUGH, L.L.P., Columbia, South Carolina, for Appel-

lant. Breon C. M. Walker, DUFF, WHITE & TURNER, L.L.C.,

Columbia, South Carolina; Maree F. Sneed, Audrey J. Anderson,

Joshua I. Civin, HOGAN & HARTSON, L.L.P., Washington, D.C.,

for Appellee. Helen L. Norton, Associate Professor of Law, UNI-

VERSITY OF COLORADO SCHOOL OF LAW, Boulder, Colorado;

Kenneth L. Childs, John M. Reagle, CHILDS & HALLIGAN, P.A.,

Columbia, South Carolina; Francisco M. Negrón, Jr., General Coun-

sel, NATIONAL SCHOOL BOARDS ASSOCIATION, Alexandria,

Virginia, for Amici Supporting Appellee.

OPINION

NIEMEYER, Circuit Judge:

Lexington County School District One, a "body politic and corpo-

rate" under South Carolina law, used its website, e-mail, and other

forms of communication to urge opposition to the Put Parents In

Charge Act, a bill pending in the South Carolina legislature that pro-

posed tax credits for private and home schooling. The School District

believed that the bill, if enacted, would tend to undermine public edu-

cation. Randall Page, who favored the bill, requested "equal access"

PAGE v. LEXINGTON COUNTY SCHOOL DISTRICT 3

to the School District’s "informational distribution system" to present

his own message in support of the bill. When the School District

refused his request, he commenced this action, claiming that the

School District’s refusal violated his First Amendment rights by dis-

criminating against his point of view.

On cross-motions for summary judgment, the district court entered

judgment in favor of the Lexington School District, concluding that

the School District’s campaign was largely "government speech" and

that the School District’s informational distribution system was not a

public forum to which Page was entitled access. We agree and

accordingly affirm.

I

The Board of Trustees of Lexington County School District One

unanimously passed a resolution on December 14, 2004, expressing

opposition to the Put Parents in Charge Act, a bill then pending in the

South Carolina General Assembly, and urging the members of the

Lexington County Legislative Delegation, as well as every member

of the South Carolina General Assembly, to vote against the bill. The

resolution noted that the Put Parents in Charge Act proposed tax cred-

its for private and parochial school tuition and home-schooling

expenses, which, the School District Board of Trustees believed,

would erode funding for public education and therefore would "un-

dermine[ ] the State’s commitment to ensure that all South Carolina

children enjoy the right to free, quality public education."

Following adoption of the resolution and in accordance with her

responsibility, Mary Beth Hill, the Director of School/Community

Relations for the School District, communicated the School District’s

position "through various channels to District committees and groups,

staff and students, school community in general, and the public at

large." Director Hill stated, "Since I am the District-level administra-

tor having overall responsibility for the content of the District’s web-

page and other means of communication, I am the person who

determines what materials are disseminated by the District to carry

forward the Board’s policy opposing school choice and [the Put Par-

ents in Charge Act]."

4 PAGE v. LEXINGTON COUNTY SCHOOL DISTRICT

Under Director Hill’s instruction and supervision, the Lexington

School District included information about the Put Parents in Charge

Act on the "current issues" page of its website and stated its opposi-

tion to the bill. The page also contained links to documents related to

the bill found on other websites, as well as to the interactive websites

of two organizations opposed to the bill — "Choose Children First"

and the South Carolina School Boards Association. Hill testified that

she made the decision regarding which links to place on the School

District’s website, and she maintained the ability to delete any link on

the website at any time. Moreover, she explained, no organization

could request a link on the School District’s website. Rather, she uni-

laterally made the decisions on what links to include "based on what

is best for [the] children, what is best for the staff and students, what

are the Board’s goals for that year, and what are their legislative pri-

orities for that year."

Director Hill also utilized the School District’s e-mail facility to

communicate the School District’s opposition to the bill. She sent e-

mails to the School District’s Government Relations Committee and

to other School District employees. The Government Relations Com-

mittee was made up of one staff member and one external representa-

tive (a parent or area resident) for each school, and sometimes

included representatives unassociated with the schools. The e-mails

sometimes included information written by third parties, which Hill

explained was included or attached for the purpose of promoting the

School District’s message. But none of the persons who authored

incorporated materials had requested inclusion of his or her materials

and the decision to include them was Director Hill’s alone.

Finally, Director Hill circulated fact-sheets and opinion pieces to

schools in the district "to convey the Board’s message." These materi-

als included a reprint of an article entitled "Who Will Speak Up for

Public Schools?" by Dr. Jim Ray, who was not a School District

employee. The article was generally anti-tax-credit and anti-school-

voucher in sentiment. The principals of two schools receiving the arti-

cle included it in their newsletters that were sent home to students and

parents. Director Hill again made clear that it was she who decided

to circulate Dr. Ray’s article, and not Dr. Ray or some third person.

On March 1, 2005, Randall Page, a citizen and resident of Lexing-

ton County who supported the Put Parents in Charge Act, sent a letter

PAGE v. LEXINGTON COUNTY SCHOOL DISTRICT 5

to the Lexington School District expressing the fact that he was "most

disturbed" to see not only that the School District maintained infor-

mation on its website critical of the Put Parents in Charge Act but also

that four schools in the district had distributed materials to their stu-

dents and sent e-mails to faculty and staff which were critical of the

bill. He then stated:

It is most distressing to see that district time, resources and

manpower were used in a way to attempt to affect legisla-

tion pending in the South Carolina General Assembly, pre-

senting a one-sided view of the debate. I am hereby

requesting that Lexington School District One permit equal

access to present the other side of Put Parents in Charge to

the district’s parents and faculty/staff by making available

the same distribution method and resources. I have materi-

als, ready for distribution, to present the opposing view-

point. I simply need equal access to the distribution system

which has already been provided to those opposing the Gov-

ernor’s initiative.

(Emphasis added).

Two weeks later, the Lexington School District’s Superintendent

responded to Page’s letter, telling him that "[i]t is the official position

of this district, as well as every other school district in South Carolina

that I am familiar with, to oppose the Put Parents in Charge bill

because we believe such legislation is not in the best interest of public

education, specifically, or the State, in general." The letter continued:

Our activities in opposition to Put Parents in Charge are not

improper; nor has our dissemination of information or distri-

bution of materials created a right of "equal access" to our

informational distribution system for you to present your

views in support of the bill. The District does not permit the

distribution of any type of outside information or materials

which do not directly promote educational, recreational or

cultural activities that would be of interest to students or

their parents. Therefore, your request for equal access must

be denied.

6 PAGE v. LEXINGTON COUNTY SCHOOL DISTRICT

Page commenced this action under 42 U.S.C. § 1983 for a declara-

tory judgment that the Lexington School District’s denial of access

violated his First Amendment rights and an injunction requiring the

School District to comply with Page’s request for "equal access to

present his viewpoint on school choice in each of the public fora

established by the Defendant." He alleged in his complaint:

By disseminating varying opinions from non-District

employees via its e-mail system, website, facsimile

machines, and newsletters, the District has created and has

continuously maintained public fora, within the meaning of

the case law interpreting the First Amendment.

Under the First Amendment, the District may not abridge

freedoms of expression of citizens in the District by discrim-

inating against speech on subjects otherwise permissible in

its public fora on the basis of the viewpoints expressed by

that speech. The First Amendment forbids the District from

regulating speech in public fora in ways that favor some

conflicting viewpoints or ideas at the expense of others.

On cross-motions for summary judgment, the district court entered

judgment in favor of the Lexington School District, finding that the

School District did not create a forum for speech to which Page was

entitled access and that the School District’s activities were largely

government speech wholly controlled by the School District.

From the district court’s judgment, dated July 20, 2007, Page now

appeals, arguing (1) that the "government speech doctrine" should not

apply to speech in opposition to legislation; (2) that the speech here

was not "government speech"; and (3) that the district court erred in

finding that no forum for discussion was created to which Page was

denied a right to equal access.

II

As an overarching position, Page asserts that Lexington County

School District One engaged in impermissible viewpoint discrimina-

tion, in violation of the First Amendment, when it denied his request

PAGE v. LEXINGTON COUNTY SCHOOL DISTRICT 7

for equal access to the "informational distribution system" that the

School District used to disseminate its opposition to the Put Parents

in Charge Act so that he could express his support of the bill. The

School District agrees that it denied Page access to the channels of

communication that it used to disseminate its opposition to the bill,

but it asserts that those channels were dedicated to the School Dis-

trict’s own speech and were not public forums to which private speak-

ers were invited.

The School District’s success in this case — based on the conten-

tions of the parties — thus depends on whether its communications

about its opposition to the Put Parents in Charge Act were govern-

ment speech or whether the School District used its channels of com-

munication to disseminate the viewpoints of private speakers against

the Put Parents in Charge Act to the exclusion of private speakers in

favor of the bill, thus discriminating in a limited public forum based

on the speaker’s viewpoint. Accordingly, we begin by addressing two

connected questions: (1) whether the Lexington School District’s

campaign against the Put Parents in Charge Act was "government

speech," and (2) whether the School District created a limited public

forum, by inviting private speech to be expressed through its commu-

nications channels, to which Page was entitled access.

At the outset, we restate what is well established — that "the Gov-

ernment’s own speech . . . is exempt from First Amendment scrutiny."

Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 553 (2005). This

observation arises from the well-understood role of government and

the scope of the First Amendment. Even though government is sup-

ported by the taxes of all, its policies are not supported by all. It fol-

lows therefore that the government may advocate in support of its

policies with speech that is not supported by all.

Compelled support of government — even those programs

of government one does not approve — is of course per-

fectly constitutional, as every taxpayer must attest. And

some government programs involve, or entirely consist of,

advocating a position. The government, as a general rule,

may support valid programs and policies by taxes or other

exactions binding on protesting parties. Within this broader

principle it seems inevitable that funds raised by the govern-

8 PAGE v. LEXINGTON COUNTY SCHOOL DISTRICT

ment will be spent for speech and other expression to advo-

cate and defend its own policies.

Johanns, 544 U.S. at 559 (internal quotation marks omitted). Accord-

ingly, just as we accept that government may adopt policies for all of

the people, even if a policy is against the wishes of some, it may also

advocate in favor of those policies. That, however, does not suggest

that government can suppress opposing views. Its speech expressed

for itself is one thing, but its regulation of other persons’ speech is

another. It is the regulation of private speech and discrimination with

respect to private speech that are the appropriate subjects of First

Amendment challenges.

The First Amendment protects against any governmental activity

that abridges the "freedom of speech" of non-governmental persons,

but it does not regulate the government’s own policies or its speech

in support of them. Government speech "is, in the end, accountable

to the electorate and the political process for its advocacy." Bd. of

Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 235

(2000). Thus, "[i]f the citizenry objects [to the viewpoint expressed

by the government], newly elected officials later could espouse some

different or contrary position." Id.; see also Sons of Confederate Vet-

erans, Inc. v. Comm’r of Va. Dep’t of Motor Vehicles, 288 F.3d 610,

618 (4th Cir. 2002).

Whether speech is government speech depends on the govern-

ment’s ownership and control of the message, and the government’s

ownership and control of the message may be determined from con-

sideration of various factors. We have identified factors such as (1)

the purpose of the program in which the speech occurs; (2) the "edito-

rial control exercised by the government" over the message; (3) the

identity of the person actually delivering the message; and (4) the per-

son "bear[ing] the ultimate responsibility for the content of the

speech." Planned Parenthood of S. C., Inc. v. Rose, 361 F.3d 786,

792-93 (4th Cir. 2004) (quoting Sons of Confederate Veterans, 288

F.3d at 618). After we identified these nonexclusive factors, the

Supreme Court issued its decision in Johanns, which distilled them,

particularly in cases involving the government’s use of third-party

messages, focusing on (1) the government’s establishment of the mes-

PAGE v. LEXINGTON COUNTY SCHOOL DISTRICT 9

sage, and (2) its effective control over the content and dissemination

of the message. Johanns, 544 U.S. at 560-62.

In Johanns, the federal government adopted a policy of promoting

the consumption of beef and beef products, but to implement the pol-

icy, it adopted ad copy written by private parties in the beef industry.

Holding that the promotional campaign was nonetheless government

speech that was not subject to regulation by the First Amendment, the

Supreme Court explained:

The Secretary of Agriculture does not write ad copy him-

self. Rather, the Beef Board’s promotional campaigns are

designed by the Beef Board’s Operating Committee, only

half of whose members are Beef Board members appointed

by the Secretary. . . . Respondents contend that speech

whose content is effectively controlled by a nongovernmen-

tal entity . . . cannot be considered "government speech."

We need not address this contention, because we reject its

premise: The message of the promotional campaigns is

effectively controlled by the Federal Government itself.

The message set out in the beef promotions is from begin-

ning to end the message established by the Federal Govern-

ment. Congress has directed the implementation of a

"coordinated program" of promotion . . . . Congress and the

Secretary have also specified, in general terms, what the

promotional campaigns shall contain . . . . Thus, Congress

and the Secretary have set out the overarching message and

some of its elements, and they have left the development of

the remaining details to an entity whose members are

answerable to the Secretary (and in some cases appointed by

him as well).

Moreover, the record demonstrates that the Secretary

exercises final approval authority over every word used in

every promotional campaign. All proposed promotional

messages are reviewed by Department officials both for sub-

stance and for wording, and some proposals are rejected or

rewritten by the Department. . . .

10 PAGE v. LEXINGTON COUNTY SCHOOL DISTRICT

***

When, as here, the government sets the overall message to

be communicated and approves every word that is dissemi-

nated, it is not precluded from relying on the government-

speech doctrine merely because it solicits assistance from

nongovernmental sources in developing specific messages.

Johanns, 544 U.S. at 560-62 (emphasis added) (footnotes omitted).

In this case, the Lexington School District Board of Trustees estab-

lished its message to oppose the Put Parents in Charge Act, adopting

the view in its December 2004 Board meeting that the proposal for

tax credits to private educators would divert public funds from public

education, undermining the State’s commitment to a free, quality pub-

lic education for all South Carolina children. And the Board

instructed its Director of School/Community Relations to communi-

cate its position through its various communications channels to gov-

ernment employees, legislators, students, and the public at large,

urging that the bill be voted down.

In carrying out her charge, the Director of School/Community

Relations employed the School District’s website, its e-mail facility,

and its distribution channels to constituent schools — all channels of

communications controlled by the School District. While the School

District did not create the full content of every communication — for

instance, it circulated an article written by Dr. Jim Ray, "Who Will

Speak Up for Public Schools?" — it adopted and approved all speech,

even that of third parties, as representative of its own position for

inclusion in its messages opposing the bill. Thus, it also controlled the

message.

In short, the nature of the School District’s speech in opposing the

Put Parents in Charge Act was strikingly analogous to the Secretary

of Agriculture’s speech in Johanns promoting the consumption of

beef. In both situations, the government established the message;

maintained control of its content; and controlled its dissemination to

the public. Moreover, in both situations, the form of the message was,

in part, adopted by the government from private sources.

PAGE v. LEXINGTON COUNTY SCHOOL DISTRICT 11

III

Page does not challenge the applicable legal principles, nor does he

dispute the facts that the School District established its message and

disseminated it through channels of communication available to it.

But he contends that the School District did not maintain sufficient

control over its channels of communication to entitle it to deny him

access to them. He argues that private persons had access to those

channels of communication with the effect that the School District

created limited public forums to which he should have been given

access. Thus, even though the School District may have intended to

maintain control over its channels of communication, in Page’s view

it did not do so effectively and therefore created limited public forums

in which he too should have been able to express his views in support

of the Put Parents in Charge Act.

It is true that if the School District invited private speakers to use

the platform of its channels of communication to speak in opposition,

it could not then exclude private speakers who would speak in favor

of the bill. Allowing such access to some would create a limited pub-

lic forum in which the School District could not exclude speech based

on its viewpoint.

In Perry Education Association v. Perry Local Educators’ Associa-

tion, 460 U.S. 37, 46-49 (1983), the Supreme Court held that a school

district appropriately excluded persons from its internal mail system

because the school district’s internal mail system was a "nonpublic

forum." The school board policy did not grant general access but

instead required those desiring access to the system to obtain the

school principal’s permission prior to distributing materials. "[I]n a

nonpublic forum the government may employ a selective access pol-

icy in which individual non-ministerial judgments govern forum par-

ticipation . . . subject to . . . two limitations: the policy must be

reasonable and viewpoint neutral." Child Evangelism Fellowship of

Md., Inc. v. Montgomery County Pub. Schs., 457 F.3d 376, 383 (4th

Cir. 2006) (internal quotation marks omitted).

Distinct from a nonpublic forum is a limited public forum, which

is a place or channel of communication created "for use by the public

at large for assembly and speech, for use by certain speakers, or for

12 PAGE v. LEXINGTON COUNTY SCHOOL DISTRICT

the discussion of certain subjects." Cornelius v. NAACP Legal Def. &

Educ. Fund, Inc., 473 U.S. 788, 802 (1985); see also Child Evange-

lism Fellowship, 457 F.3d at 382 (defining a "limited public forum"

to exist where "the government creates a channel for a specific or lim-

ited type of expression where one did not previously exist"). In a lim-

ited public forum, "‘the State may be justified in reserving [its forum]

for certain groups or for the discussion of certain topics,’" but its

activities in limiting the forum "must be viewpoint neutral and rea-

sonable." Child Evangelism Fellowship, 457 F.3d at 382 (quoting

Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106 (2001))

(alteration in original).

Page contends that the School District maintained inadequate con-

trol over each of the channels of communication it employed to dis-

seminate its opposition to the Put Parents in Charge Act, and thus the

School District created a limited public forum from which he could

not be excluded based on his viewpoint. We address each channel that

the School District employed to disseminate its message.

With respect to the School District’s website, Page argues that the

School District’s inclusion of links to other websites caused the

School District to lose control over content and therefore to fail the

government-speech requirement of control. He reasons that links to

other websites controlled by nongovernmental entities made available

messages that may not have been in existence at the time the School

District created the links. Therefore, any later-posted third-party state-

ments would not have been subject to approval by the School District

prior to posting. Page refers in particular to two links that the Lexing-

ton School District placed on its website in connection with its oppo-

sition to the Put Parents in Charge Act. The first was to the website

of "Choose Children First," an organization formed to oppose the bill,

and the second was to the website of the South Carolina School

Boards Association, an organization that had expressed its opposition

to the bill for the same reasons relied on by the Board of Trustees of

the Lexington School District. Moreover, Page notes that the School

District recognized the potential for changes in others’ websites to

which it provided links by including a disclaimer that reads, in rele-

vant part:

Some Lexington County School District One Webpages

have links to other Web sites.

PAGE v. LEXINGTON COUNTY SCHOOL DISTRICT 13

These external Web addresses contain information created,

published, maintained or otherwise posted by institutions or

organizations independent of Lexington One. Lexington

One does not endorse, approve, certify or control these

external Web addresses and does not guarantee the accu-

racy, completeness, efficacy, timeliness, or correct sequenc-

ing of information located at such addresses.

Use of any information obtained from such addresses is vol-

untary, and reliance on it should only be undertaken after an

independent review of its accuracy, completeness, efficacy

and timeliness.

Page’s argument depends on an implied conclusion that by includ-

ing a link to another organization’s website, the School District made

the contents of that other website part of its own website. This argu-

ment, however, assumes too much.

First, it must be noted that the links to other websites were selected

by the School District alone as ones that supported its own message.

There is no suggestion that the owners of the other websites took any

initiative to be included on the School District’s website.

Second, the School District wholly controlled its own website,

retaining the right and ability to exclude any link at any time.

Third, the School District never incorporated on its own website

any material from a website to which it had provided a link; it merely

provided information that other websites supporting its position

existed, and it facilitated viewing those websites with links.

Fourth, the School District continuously and unambiguously com-

municated a consistent message — its opposition to the Put Parents

in Charge Act — and its providing references to others who shared

that position was consistent with and supported the message, much as

would a bibliography, a citation, or a footnote.

Finally, the School District "disclaimed" the contents of any linked

website, making it clear that only that which was stated on its own

website should be taken as the School District’s speech.

14 PAGE v. LEXINGTON COUNTY SCHOOL DISTRICT

Had a linked website somehow transformed the School District’s

website into a type of "chat room" or "bulletin board" in which pri-

vate viewers could express opinions or post information, the issue

would, of course, be different. But nothing on the School District’s

website as it existed invited or allowed private persons to publish

information or their positions there so as to create a limited public

forum. To the contrary, the School District retained complete control

over its website, including the ability to take down its links to other

sites at any time. This control was demonstrated by the fact that

Director Hill removed the "Choose Children First" link when that

organization changed its website to include information other than

that relating to its opposition to the Put Parents in Charge legislation.

She had included the link initially when Choose Children First had

only one page on its website dedicated solely to the bill.

In sum, we conclude that the School District sufficiently controlled

this channel of communication so that its speech remained govern-

ment speech and it did not create a limited public forum by including

links to other websites. The School District included every link to

other websites on its own initiative, and it did so only insofar as the

link would buttress its own message. It thus retained sole control over

its message.

The same is true for the School District’s e-mail facility. Page

argues that because the School District included in or attached to

some e-mails the article by Dr. Ray and other statements of private

parties, it thereby created a limited public forum. Again, however, the

School District, on its own initiative, selected Dr. Ray’s article for

inclusion and thus adopted it to support its own message. There is no

suggestion that Dr. Ray or any other third person had access to the

School District’s e-mail facility. Instead, their materials were merely

incorporated into content that the School District drafted and sent in

furtherance of its own campaign in opposition to the Put Parents in

Charge Act.

Finally, with respect to the other channels of distribution by which

the School District distributed material to its constituent schools,

superintendents, and principals, Page has advanced no evidence to

suggest that those distribution mechanisms were available to anyone

other than School District employees.

PAGE v. LEXINGTON COUNTY SCHOOL DISTRICT 15

Accordingly, we conclude that the School District established its

own message and effectively controlled the channels of communica-

tion through which it disseminated that message, as required for

application of the government speech doctrine under Johanns, and

therefore that it did not create a limited public forum to which Page

was entitled access.

IV

Page contends additionally that newsletters distributed by individ-

ual schools within the School District were public forums to which he

was entitled access, pointing particularly to the White Knoll Middle

School PTSA newsletter which communicated opposition to the Put

Parents in Charge Act.

The PTSA (Parent-Teacher-Student Association) newsletter that

Page refers to, however, was not written by the School District, nor

was it an official school newsletter. Rather, it was the newsletter of

the White Knoll Middle School Parent-Teacher-Student Association,

a third-party nongovernmental entity. While the opinion expressed in

the PTSA newsletter in opposition to the bill was consistent with the

School District’s position, the newsletter opinion was not expressed

as the School District’s own message but as that of the White Knoll

Middle School PTSA. Parent-Teacher-Student associations (or

Parent-Teacher associations) are organizations affiliated with, but dis-

tinct from, the schools making up the School District, even though the

procedures of such organizations are subject to editorial control by the

schools’ principals.

It may be true that by editorially controlling the newsletter, the

individual school may have created a limited public or nonpublic

forum because the speech in the PTSA newsletter was not the govern-

ment’s own speech, but speech of the Association. But that conclu-

sion does not advance Page’s request in this case to have access to the

newsletter, because he has not demonstrated that he was within the

class of persons who was, by design, accorded access to that forum.

See Perry, 460 U.S. at 46 & n.7; Child Evangelism Fellowship, 457

F.3d at 383.

The district court concluded that even though the newsletter likely

constituted a nonpublic forum, that forum was defined to allow access

16 PAGE v. LEXINGTON COUNTY SCHOOL DISTRICT

to only "entities such as PTAs [PTSAs] and Booster Clubs which

were closely associated with the schools" and that those restrictions

were reasonable access restrictions, rather than a pretext for viewpoint

discrimination. We agree with the district court’s conclusions.

Regardless of whether the newsletter was a nonpublic or limited

public forum, "[c]ontrol over access to [the forum] 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." Cornelius, 473 U.S. at 806; see also Perry, 460

U.S. at 46 (finding that status-based distinctions are acceptable in

nonpublic or limited public forums "as long as the regulation on

speech is reasonable and not an effort to suppress expression merely

because public officials oppose the speaker’s view"); Putnam Pit, Inc.

v. City of Cookeville, 221 F.3d 834, 843 (6th Cir. 2000) (finding that

a government entity may limit access to a nonpublic forum based on

category of speaker or subject matter so long as the limitation is rea-

sonable). In this case, limiting access to entities closely associated

with the school and subject to the school principal’s oversight and

approval was both reasonable and viewpoint neutral, and therefore

Page has not demonstrated unlawful viewpoint discrimination, as he

has failed to demonstrate that this was a forum otherwise open to him

but for his viewpoint.

V

Page also contends that he should have been granted access to dis-

seminate his materials through any other distribution systems used by

the Lexington School District and its constituent schools, such as its

"take-home flyer" program, its fax facilities, and the Government

Relations Council.

First, there is no evidence that the School District ever distributed

or permitted anyone to distribute anything related to the Put Parents

in Charge Act through these facilities. Therefore, Page never

requested access to them because he asked to distribute his materials

through channels of communication that had been used to disseminate

the School District’s position on the Put Parents in Charge Act.

In addition, as for the take-home flyer program, the School District

permitted distribution of flyers to students only when they were pre-

PAGE v. LEXINGTON COUNTY SCHOOL DISTRICT 17

approved by the School/Community Relations staff and only when

the materials were from a § 501(c)(3) nonprofit organization that

sponsored extracurricular activities for students (such as Boy Scouts

or Little League) and, in addition, when they were "sign-up" or "reg-

istration announcements," rather than "message-driven" materials. As

with the PTSA newsletter program, the take-home flyer program con-

stituted at most a nonpublic or limited public forum, and the School

District’s restrictions on access to it were surely reasonable in the

context of a public school.

For similar reasons, we reject Page’s arguments with respect to

other channels of communication, such as the School District’s fac-

simile machines, the Government Relations Council, and other modes

of communication that the School District had.

VI

Finally, Page argues as a general matter that the government

speech doctrine should, in any event, never apply when the govern-

ment attempts to influence legislation. In essence, he urges that we

adopt a content-based limitation on the government speech doctrine.

His argument is grounded on the proposition that when the School

District attempts to influence legislation, its position is not checked

by the "ballot box," which is the traditional justification for accepting

the government speech doctrine. See Southworth, 529 U.S. at 235 ("If

the citizenry objects [to the message the government espouses], newly

elected officials later could espouse some different or contrary posi-

tion"); Sons of Confederate Veterans, 288 F.3d at 618 ("The rationale

behind the government’s authority to draw otherwise impermissible

viewpoint distinctions in the government speech context is the

accountability inherent in the political process"); see also Legal Servs.

Corp. v. Velazquez, 531 U.S. 533, 541-42 (2001).

In this case, Page assumes erroneously that the ballot box is not

available to check the government speech. He overlooks that

"[school] board members are elected. They may be removed, at the

next election, if the voters disagree with the manner in which they

have exercised their discretion. No more immediate ‘ballot box’ rem-

edy is suggested by the case law," as the district court appropriately

noted.

18 PAGE v. LEXINGTON COUNTY SCHOOL DISTRICT

Moreover, recognizing that government speech almost always sup-

ports a given policy objective and "[t]he government is entitled to

promote particular messages," Griffin v. Dep’t of Veterans Affairs,

274 F.3d 818, 822 (4th Cir. 2001) (citing Rosenberger v. Rector &

Visitors of Univ. of Va., 515 U.S. 819, 833 (1995)), the School Dis-

trict can surely "take legitimate and appropriate steps to ensure that

its message[s] [are] neither garbled nor distorted," Rosenberger, 515

U.S. at 833; see also Rust v. Sullivan, 500 U.S. 173, 194-95 (1991).

It is therefore appropriate for the School District to defend public edu-

cation in the face of pending legislation that it views as potentially

threatening of public education.

Many courts have rejected First Amendment challenges to govern-

ment speech involving advocacy regarding ballot measures. See, e.g.,

Kidwell v. City of Union, 462 F.3d 620, 626 (6th Cir. 2006) (finding

that "[t]he needs of effective governance command that the bar limit-

ing government speech be high" in holding that the First Amendment

did not prevent the city from advertising against a ballot referendum);

Cook v. Baca, 95 F. Supp. 2d 1215, 1227-29 (D.N.M. 2000) (rejecting

First Amendment challenge to advertisement placed by mayor on

every citizen’s water bill advocating for ballot initiative), aff’d, 12

Fed. Appx. 640 (10th Cir. 2001); Ala. Libertarian Party v. City of

Birmingham, 694 F. Supp. 814, 818-21 (N.D. Ala. 1988) (holding that

the First Amendment did not preclude city’s advertising for ballot ini-

tiatives). While the issue in this case is not a ballot measure before

individual voters, but rather a bill before the state legislature, grass-

roots lobbying of the type witnessed here nonetheless presents no

greater concerns from a democratic accountability standpoint than

advocacy regarding measures on the ballot. The ultimate target for the

School District’s campaign against the Put Parents in Charge Act was

the State’s General Assembly, and members of the General Assembly

— the ones who will ultimately vote on the measure — are them-

selves public officials and have an independent responsibility to

decide the public interest.

Accordingly, we reject Page’s argument that the government

speech regarding legislation in this case cannot fit within the bounda-

ries of the government speech doctrine.

PAGE v. LEXINGTON COUNTY SCHOOL DISTRICT 19

VII

This case reduces to the straightforward circumstance where the

Lexington School District determined to oppose the pending Put Par-

ents in Charge Act and charged its School/Community Relations

Director to communicate that message to virtually anyone who would

hear it. The School/Community Relations Director employed the

School District’s website, e-mail facility, and other distribution meth-

ods to communicate the message to constituent schools, students, and

the public. Throughout its campaign, the School District maintained

control over the development and dissemination of its message, and

it never allowed private persons to participate in the channels through

which it disseminated its message so as to create a public forum. We

agree with the district court that the School District engaged in gov-

ernment speech and that its speech did not implicate the First Amend-

ment or Page’s First Amendment rights.

The district court’s judgment is accordingly

AFFIRMED.