# San Diego Committee Against Registration and the Draft (Card), Plaintiff v. The Governing Board of the Grossmont Union High School District > Court of Appeals for the Ninth Circuit · June 6, 1986 · 790 F.2d 1471 URL: https://www.frixlaw.com/law-library/cases/9474857 ## Case - **Full name:** SAN DIEGO COMMITTEE AGAINST REGISTRATION AND THE DRAFT (CARD), Plaintiff-Appellant, v. the GOVERNING BOARD OF the GROSSMONT UNION HIGH SCHOOL DISTRICT, Et Al., Defendants-Appellees - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** June 6, 1986 - **Citations:** 790 F.2d 1471; 55 U.S.L.W. 2007; 12 Media L. Rep. (BNA) 2329; 1986 U.S. App. LEXIS 25998 - **Precedential status:** Published - **Opinion:** Dissent by Wallace - **Judges:** Goodwin, Wallace, Reinhardt - **Cited by:** 66 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Abrogated on other grounds by Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9474857 ## Opinion text WALLACE, Circuit Judge, dissenting: I first address a preliminary problem with the majority disposition. I believe the majority is far too generous in considering a document which does not purport to be a notice of appeal as complying with Fed.R. App.P. 4(a). I cannot distinguish Selph v. Council of the City of Los Angeles, 593 F.2d 881 (9th Cir.1979), from this case and, therefore, conclude we have no jurisdiction to hear this appeal. If this were the only vice of the majority disposition, my separate opinion would be brief. But the majority has run afoul of Supreme Court precedent on a fundamental issue. Last Term, in Cornelius v. NAACP Legal Defense & Educational Fund, Inc., — U.S. -, 105 S.Ct. 3439 , 87 L.Ed.2d 567 (1985) (Cornelius), the Court presented its most thorough elaboration of the public forum doctrine. See id. at 3446-55 . Unfortunately, the majority misreads or disregards Cornelius and manufactures an analysis that is patently inconsistent with the analysis of the Court. I In Cornelius , the Court addressed a claim that the federal government violated the first amendment by excluding legal defense and political advocacy organizations from participation in the Combined Federal Campaign (the campaign), a charity drive conducted in the federal workplace. An executive order limited participation in the campaign to “voluntary, charitable, health *1482 and welfare agencies that provide or support direct health and welfare services to individuals or their families” and specifically excluded organizations that seek to influence elections or public policy through political activity, lobbying, or litigation. Id. at 3445-46 , quoting Exec. Order No. 12404 § 1(b), 3 C.F.R. 151 (1984). After acknowledging that charitable solicitation of funds is a form of protected speech, id. at 3447-48, the Court turned to examine the status of the campaign under the public forum doctrine. Following Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37, 45-46 , 103 S.Ct. 948, 954-55 , 74 L.Ed.2d 794 (1983) (Perry), the Court recognized three categories of fora: (1) the traditional public forum; (2) the public forum created by government designation, which includes the “limited public forum”; and (3) the nonpublic forum. 105 S.Ct. at 3449 . The Court determined that the campaign was a nonpublic forum, rather than a public forum created by government designation. The key to distinguishing between these two categories, the Court ruled, is the government’s intent: The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a non-traditional forum for public discourse. Accordingly, the Court has looked to the policy and practice of the government to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum. Id. (citation omitted). Thus, the Court observed, the internal mail system in Perry was a nonpublic forum since “school board policy did not grant general access to the school mail system.” Id. at 3450 ; see Perry, 460 U.S. at 47 , 103 S.Ct. at 956 (forum is nonpublic if there is no policy or practice of “indiscriminate use by the general public”). Similarly, the advertising space on city transit buses in Lehman v. City of Shaker Heights, 418 U.S. 298 , 94 S.Ct. 2714 , 41 L.Ed.2d 770 (1974), was a nonpublic forum because the city’s policy of allowing only commercial and not political advertisements showed that it intended to limit access. Cornelius, 105 S.Ct. at 3450 . Applying this intent test, the Court explicitly rejected the contention that the campaign was a limited public forum open to all charitable organizations. The Court stated that the government’s policy and practice of limiting access to the campaign precluded the conclusion that the campaign had been purposefully designated for public use. The Court also observed that the nature of the government property involved is relevant to determining intent and that the government has the right to control access to the workplace to avoid disruption. Consequently, the selective access granted to certain charitable organizations did not convert the campaign into a public forum. Id. at 3450-51 . Because the campaign was a nonpublic forum, the Court subjected its restrictions to limited scrutiny: “Control over access to a nonpublic 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.” Id. at 3451 ; see Perry, 460 U.S. at 46, 49 , 103 S.Ct. at 954, 957 . The Court found the restrictions on access reasonable since they were intended to avoid “the appearance of political favoritism” and to limit disruption of the forum. Cornelius, 105 S.Ct. at 3453-54 . The Court remanded the case, however, because the lower courts had not made a. finding on whether the restrictions were “in reality a facade for viewpoint-based discrimination.” Id. at 3454-55 . The proper application of Cornelius is well illustrated by Student Coalition for Peace v. Lower Merion School District Board of School Directors, 776 F.2d 431 (3d Cir.1985) (Student Coalition). In Student Coalition, the Third Circuit encountered a fact situation closely analogous to this case. Indeed, the few differences that exist make ours an even stronger case for the application of Cornelius . Student Coalition for Peace (SCP), a nonschool-spon *1483 sored student organization dedicated to the cause of world peace through nuclear disarmament, requested permission to use Arnold Field, an athletic field on school premises, for a Peace Fair. The field had been regularly used for nonschool-sponsored community events, including annual Memorial Day services honoring the nation’s war dead. The field was also used regularly without permission by members of the community for recreational purposes. The school board denied the student group permission to use the field for the Peace Fair on the ground that the field was not available for political events. The student group brought suit, claiming that the public forum doctrine required that it be granted use of the field. Id. at 433-34. The Third Circuit, adhering closely to the guidance provided by the Supreme Court in Cornelius , determined that the field was a nonpublic forum: We do not think that the evidence in this case shows an intent by appellees [ (the school board and other school officials) ] to create a public forum at Arnold Field. The Board’s policy requires each nonschool sponsored organization, such as SCP, to obtain permission to use the Field____ SCP has not met its burden of showing that such permission was in fact granted as a matter of course. Thus, neither the written policy nor the actual practice of appellees manifests an intent to designate Arnold Field as a public forum. Id. at 436. The court then concluded that limiting the field to non-political events was reasonable in light of the “desire to avoid potentially disruptive political controversy and to maintain the appearance of neutrality.” Id. at 437. Significantly, the court recognized that while other activities permitted on the field may have an implicit political message, that message is plainly subsidiary to other aspects of the event, and could thus pose less of a threat either of disruption or of the appearance of favoritism. The Board is not required to delineate with absolute clarity the distinction between the political and the nonpolitical, as long as the line it does draw is reasonable and not a subterfuge for viewpoint discrimination. In particular, the Board could reasonably conclude that Memorial Day services do not create the same risk of partisan controversy as the Peace Fair. Id. Accepting the district court’s finding of no viewpoint discrimination, the court denied SCP’s first amendment claim. Id. at 437-38. II The majority concludes that the appearance of vocational military advertisements in the five student newspapers published by high schools governed by the Board created limited public fora from which CARD’S advertisement could not be excluded. I believe that the majority, while purporting to apply Cornelius , ignores its teachings. As I read Cornelius , the Board’s acceptance of the vocational military advertisements in the five high school newspapers did not create limited public fora from which CARD’S advertisement could not be excluded. The fora that we must address consist of the advertising spaces in the five papers. See Cornelius, 105 S.Ct. at 3449 (defining forum according to access sought by speaker). These fora are public only if the Board has purposefully designated them for public discourse. See id.; see also Calash v. City of Bridgeport, 788 F.2d 80, 83 (2d Cir.1986) (“not every possible vehicle for communication is a public forum”). “[S]elective access, unsupported by evidence of a purposeful designation for public use, does not create a public forum.” Cornelius, 105 S.Ct. at 3451 . I see no indication that the Board intended to designate the advertising spaces in the five high school newspapers as public fora. As in Perry, Lehman, and Cornelius , the Board’s policy and practice do not demonstrate an intention to grant general access to the newspapers’ advertising space. On the contrary, the Board’s policy states, in part, that “paid advertisements by nonstudents ... shall not be published *1484 except ... [i]nsofar as the publication staff and adviser in their sole discretion determine that the publication of such material will further the publication’s primary purposes sufficiently to warrant publications....” Further, as a matter of practice, the Board developed criteria limiting access to the advertising space. The nature of the government property involved in this case bolsters the conclusion that the Board did not intend to designate the newspapers’ advertising spaces as public fora. I believe that the advertising spaces in the five high school newspapers exist not to promote the expressive activity of nonstudents but rather to teach students journalistic management skills and to help finance the publication of the newspapers. See Nicholson v. Board of Education Torrance Unified School District, 682 F.2d 858, 863-64 (9th Cir.1982) (Nicholson). This enterprise is inconsistent with an intent to designate the advertising space as a public forum. See Cornelius, 105 S.Ct. at 3450 (discussing Lehman). Moreover, our obligation to apply first amendment rights “in light of the special characteristics of the school environment,” Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 , 89 S.Ct. 733, 736 , 21 L.Ed.2d 731 (1969), requires that we accept “school policies that are reasonably designed to adjust those rights to the needs of the school environment.” Nicholson, 682 F.2d at 863 . The Board has the right to control access to the newspapers’ advertising spaces in order to avoid disruption of the educational process. See Cornelius, 105 S.Ct. at 3451 ; Student Coalition, 776 F.2d at 436-37 . Cornelius therefore requires the conclusion that the newspapers’ advertising spaces are nonpublic fora. The majority’s contrary conclusion rests on its mistaken belief that if speech admitted in a forum relates to a “controversial and political” issue, the government has created a limited public forum that encompasses the issue. See maj. op. at 1477-1478. That the majority’s test conflicts with the Supreme Court’s government intent test in Cornelius is evident from applying the majority’s test to the issues addressed in Cornelius and Student Coalition. If the majority’s term “controversial and political” has any discernible fixed meaning, it surely encompasses the provision of health and welfare services (Cornelius) and the subject of war and peace {Student Coalition). Since charitable organizations soliciting in the campaign in Cornelius engage in speech on a controversial and political issue, an evenhanded application of the majority’s test would determine that the campaign is a limited public forum from which legal defense and political advocacy organizations could not be excluded — a conclusion expressly rejected by the Supreme Court in Cornelius . Similarly, the majority’s test would determine that the Memorial Day services in Student Coalition converted the field into a limited public forum from which SCP could not be excluded — a conclusion expressly rejected by the Third Circuit faithfully adhering to Cornelius . 1 Ill Restrictions on access to a nonpublic forum need only be reasonable in light of the purpose served by the forum and be not viewpoint-based. Cornelius, 105 S.Ct. at 3451 . The majority states that even if the *1485 fora at issue are nonpublic, the Board’s refusal to accept CARD’S advertisement violated the first amendment because it was unreasonable and viewpoint-based. I believe that this dicta is ill-considered. I would find the Board’s restrictions reasonable; I would, however, remand for a determination whether the Board’s rejection of CARD’S advertisement was viewpoint-based. I believe that the Board’s exclusion of political advertisements is reasonably designed to avoid disruption. 2 . See id. at 3453-54 ; Student Coalition, 776 F.2d at 437 . While I understand the majority’s view that vocational military advertisements may have political implications, I agree with the Third Circuit that the Board is obligated merely to draw a reasonable line between the political and the nonpolitical. See Student Coalition, 776 F.2d at 437 ; see also Lehman, 418 U.S. 298 , 94 S.Ct. 2714 , 41 L.Ed.2d 770 (upholding municipal policy that prohibited political advertising in city transit vehicles but allowed commercial advertising). Rather than following this line of reasoning, the majority instead incorporates by reference the discussion that it developed in the context of its limited public forum discussion. See maj. op. at 1479. It thus appears that the majority has improperly blended together the different standards of review applicable to restrictions on public and nonpublic forums. It follows from the above discussion that I cannot agree with the majority that the only reasonable inference is that the Board’s refusal of the CARD advertisement constituted viewpoint-based discrimination. None of the district court’s findings, however, explicitly addresses whether the Board’s rejection of CARD’S advertisement was an attempt to suppress CARD’S point of view. The district court found that CARD’S advertisement was rejected because it was a political advertisement from a non-student source and because it was believed to advocate an illegal act. While these findings strongly suggest no viewpoint discrimination, it would be better if there were a specific finding on this issue. I would therefore remand to the district court for a determination of this issue. IV Thus, I conclude that the Supreme Court’s recent pronouncement in Cornelius forecloses the contention that the Board’s acceptance of the vocational military advertisements created a limited public forum from which CARD’S advertisement could not be excluded. Instead, the forum is nonpublic, and the Board’s restrictions are reasonable. Only if the Board sought to suppress CARD’S point of view — an issue that should be determined on remand— have CARD’S first amendment rights been violated. I cannot join the majority in instructing the district court to enter a preliminary injunction in favor of CARD because, on the present record, CARD has not shown a probability that it would succeed on the merits of its first amendment claim. . The majority makes no effort to explain how its holding that a limited public forum has been created is reconcilable with Cornelius . Moreover, the majority’s efforts to reconcile its holding with Student Coalition are entirely unconvincing. The majority’s statement that the school grounds in Student Coalition were nonpublic because access to them was “highly restricted,” maj. op. at 1478 n. 9, is untenable. The Third Circuit specifically noted that "Arnold Field has been regularly used for nonschool sponsored community events____ and is also used regularly without permission by members of the community for jogging, bicycle riding, picnics, and similar activities." Student Coalition, 776 F.2d at 433-34 . Again, contrary to the majority’s suggestion that the Memorial Day services were not “political or controversial in any respect," maj. op. at 1480 n. 11, the Third Circuit acknowledged that the services posed some “risk of partisan controversy.” Student Coalition, 776 F.2d at 437 . . The majority’s refusal to accept this justification, see maj. op. at nn. 10-11, is flawed in several respects. First, irrespective of whether the Board has argued that publication of CARD’S advertisements would cause disruption in the schools, the Board has acted pursuant to a policy that it argues was developed and implemented to limit disruption. Second, the majority’s suggestion that disruption must already have occurred in order to be legitimately considered is flatly contrary to Cornelius, 105 S.Ct. at 3453 ("the Government need not wait until havoc is wreaked to restrict access to a nonpublic forum”), Perry, 460 U.S. at 52 n. 12, 103 S.Ct. at 959 n. 12 (proof of past disturbances not required to justify the denial of access to a nonpublic forum on grounds of potential disruption), and Student Coalition, 776 F.2d at 437 (same). The majority’s further suggestion that the possibility of disruption must be well-documented in the record, see maj. op. at n. 10, is equally in conflict with Supreme Court precedent. See Perry, 460 U.S. at 52 n. 12, 103 S.Ct. at 959 n. 12. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9474857. Public record. Not legal advice.