Planned Parenthood Of Southern Nevada, Inc. v. Clark County School District

This case raises the same concern addressed by the United States Supreme Court in Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988): the extent to which educators may exercise editorial control over the contents of high school publications.

In Hazelwood, a high school principal declined to publish two student articles which he believed were inappropriate in a school-sponsored newspaper. The Court held that when school facilities, such as publications, have been reserved for intended educational purposes, school officials may regulate their contents in any reasonable manner; that a school, in its capacity as publisher, has authority to refuse to associate the school with any position other than neutrality on matters of political controversy; and that it was reasonable for a high school principal to control student expressive activities that he concluded were unsuitable for publication on account of their subject matter, given the youth of the audience, and lack of opportunity for third-parties to respond.

In this case, high school educators who permit advertisements in school-sponsored publications declined to accept advertisements for the services of Planned Parenthood in student newspapers, yearbooks and athletic programs. The schools believed publishing the advertisements might implicate their classes on sex education and put the school's imprimatur on one side of a controversial issue. The district court concluded that this is a Hazelwood case, and we agree.

Because both are school cases and the publications are school-sponsored, we do not write on a clean slate. Hazelwood instructs that we are to invest high school educators with greater control over expressive activities that bear the school's imprimatur than other forms of speech or use of government facilities. Thus, in striking a balance between the schools' interests and Planned Parenthood's, we must assume that school-sponsored publications are nonpublic and that unless the schools affirmatively intend to open a forum for indiscriminate use, restrictions reasonably related to the school's mission that are imposed on the content of school-sponsored publications do not violate the first amendment.

This case raises troubling issues because few things are so fundamental as our right to speak out, student or adult, pharmacist or Planned Parenthood. It is the more so because few things are so significant to our society, or reflect such deeply held and widely divergent views crying out for expression, as family planning, sex education, birth control and teenage pregnancy.

Yet "the education of the Nation's youth is primarily the responsibility of parents, teachers, and state and local officials, and not of federal judges." Hazelwood, 484 U.S. at 273, 108 S.Ct. at 571. We are not educators and curricular choices are not ours to make. We are not members of the Board of Education and it is not open to us as judges to decide this case as we might vote were we politicians. Our task is not to decide whether the message, or the messenger, is a menace or the messiah.

Rather, we must start with Hazelwood and the questions we must decide are these:

Are the publications in which Planned Parenthood wishes to advertise forums for public expression?

Do these school-sponsored publications bear the imprimatur of the school, such that they are within the intended purpose for which the forum is reserved?

Were school officials justified in refusing to accept the Planned Parenthood advertisement?

Before Hazelwood the district court found Planned Parenthood's first amendment rights were infringed. In light of Hazelwood it reconsidered and changed its ruling. In this it acted correctly, and we affirm.

* Planned Parenthood of Southern Nevada (Planned Parenthood) brought suit under 42 U.S.C. § 1983 against the Clark County School District (school district) seeking declaratory and injunctive relief for an alleged deprivation of its first amendment rights. Planned Parenthood claims the school district violated its rights under the first and fourteenth Amendments by refusing to accept advertisements it submitted for publication in high school newspapers, yearbooks and athletic programs.

Planned Parenthood, a nonprofit corporation affiliated with Planned Parenthood Federation of America, is a family planning program that provides clinical, educational and counseling services for matters relating to reproductive health. The Clark County School District is a local school district, comprised of fifteen high schools, created under Nevada law to control and supervise the education of all minor children within the district.

The school district authorizes its high schools to publish newspapers, yearbooks and athletic programs. Newspapers and yearbooks are published as part of the school district curriculum. Newspapers are produced as part of Journalism I and II, while yearbooks are published in Publications I and II. These courses are taught by district faculty, and students receive grades and credit. Athletic programs are not produced as part of any particular course, but are distributed by the schools at school-sponsored events to inform spectators about the competition.

Principals are allowed to decide whether to accept advertising for these publications, to establish guidelines regulating acceptable advertisements and to determine whether a proposed advertisement satisfies the guidelines, if any. All of the schools but one accept advertising.

The school district's policy with respect to advertising is reflected in a memorandum from Daniel Hussey.1 At the time of the suit, five schools had adopted written guidelines; eight promulgated them after the suit was begun, and two remain without guidelines. The guidelines typically provide that the school reserves the right to deny advertising space to any entity that does not serve the best interests of the school, the school district and the community. A faculty member, usually the principal, must approve all advertisements prior to publication. In addition to declaring that the school will not run any ads it deems lewd, obscene or vulgar, the guidelines note that advertisements for certain products will not be accepted: X- or R-rated movies, gambling aids, tobacco products, liquor products, birth control products or information, drug paraphernalia and pornography.

The school district also has enacted regulations dealing with "controversial issues," which provide in part, "No group or individual may claim the right to present arguments for or against any issue under study directly to students or to the class without authorization." Clark County School District Regulation 6124.2. Further, by statute, Nevada regulates instruction in the human reproductive system, related communicable diseases and sexual responsibility. Nev.Rev.Stat. § 389.065 (1987). Pursuant to this statute, the school district adopted Regulation 6123 which requires that sex education only be taught by qualified teachers and nurses, using only certain approved materials.

On numerous occasions between March 1984 and August 1985, Planned Parenthood submitted advertisements for publication in school district newspapers and athletic programs. The record does not show that Planned Parenthood submitted its advertisements to any yearbooks prior to commencing this suit. Each ad offered routine gynecological exams, birth control methods, pregnancy testing and verification, and pregnancy counseling and referral.2 Most schools rejected the ad; one school continues to publish it.

Following trial on stipulated facts, the district court concluded that under San Diego Committee Against Registration and the Draft (CARD) v. Governing Board of Grossmont Union High School District, 790 F.2d 1471 (9th Cir.1986),3 the publications were limited public forums for advertisements lawfully available to high school audiences, and that without showing a compelling government interest, the school district would have to publish Planned Parenthood's advertisements to the extent they fell within the forum created. When the Supreme Court thereafter decided Hazelwood, the district court withdrew its order and on reconsideration found that the publications were nonpublic forums and the exclusions reasonable. Planned Parenthood appealed the district court's judgment in favor of the school district. The panel affirmed, Planned Parenthood v. Clark County School District, 887 F.2d 935 (9th Cir.1989), and we took the matter en banc.

The parties agree that Planned Parenthood's advertisements are protected speech under the first amendment. Therefore we must first resolve whether the school newspapers, yearbooks and athletic programs are forums for public expression. Hazelwood, 484 U.S. at 267, 108 S.Ct. at 567 ("We deal first with the question whether Spectrum may appropriately be characterized as a forum for public expression"); Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 797, 105 S.Ct. 3439, 3446, 87 L.Ed.2d 567 (1985).A

Planned Parenthood seeks access to advertising space in school-sponsored publications.4 Hazelwood teaches that "school facilities may be deemed to be public forums only if school authorities have 'by policy or by practice' opened those facilities 'for indiscriminate use by the general public,' Perry Education Ass'n. v. Perry Local Educators' Ass'n., 460 U.S. 37, 47, 103 S.Ct. 948, 956, 74 L.Ed.2d 794 (1983), or by some segment of the public, such as student organizations." 484 U.S. at 267, 108 S.Ct. at 567. If, on the other hand, school facilities have been reserved for other intended purposes, "communicative or otherwise," no public forum will have been created and reasonable restrictions on speech may be imposed.5 Id.; Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46 & n. 7, 103 S.Ct. 948, 955 & n. 7, 74 L.Ed.2d 794 (1983).

In Hazelwood, student staff members of the school newspaper, Spectrum, argued that their principal violated their first amendment rights when he deleted two pages from the paper prior to its publication.6 After establishing that the first amendment claims must be considered "in light of the special characteristics of the school environment," 484 U.S. at 266, 108 S.Ct. at 567 (quoting Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969)),7 the Court reiterated that " '[t]he determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board,' rather than with the federal courts." 484 U.S. at 267, 108 S.Ct. at 567 (quoting Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 683, 106 S.Ct. 3159, 3164, 92 L.Ed.2d 549 (1986)). It then stressed that the school's intent is the critical factor in the forum calculus. "The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse." Id. (quoting Cornelius, 473 U.S. at 802, 105 S.Ct. at 3449).

In determining whether school officials evinced any intent to open the pages of Spectrum to indiscriminate use, the Court considered such factors as the paper was produced as part of the high school curriculum; students received grades and academic credit for completing the course, which a faculty member taught; the school did not deviate in practice from its policy of publishing the paper as part of the educational curriculum; the teacher exercised a great deal of control over the production and publication of the paper, and both he and the principal had to approve nearly every aspect of each issue, including its content. The Court also reviewed written policy statements of the school board and Spectrum. One school board policy provided, among other things, that "[s]chool sponsored student publications will not restrict free expression or diverse viewpoints within the rules of responsible journalism." Spectrum had also declared that the paper "accepts all rights implied by the first amendment" and noted that "[o]nly speech that 'materially and substantially interferes with the requirements of appropriate discipline' can be found unacceptable and therefore be prohibited."8 Hazelwood, 484 U.S. at 269 & n. 2, 108 S.Ct. at 269 & n. 2.

The Court concluded that this evidence failed to demonstrate the "clear intent to create a public forum," id. at 270, 108 S.Ct. at 569 (quoting Cornelius, 473 U.S. at 802, 105 S.Ct. at 3449), that was present in other public forum cases, referring to Widmar v. Vincent, 454 U.S. 263, 267, 102 S.Ct. 269, 273, 70 L.Ed.2d 440 (1981); City of Madison Joint School District v. Wisconsin Employment Relations Comm'n, 429 U.S. 167, 174 & n. 6, 97 S.Ct. 421, 426 & n. 6, 50 L.Ed.2d 376 (1976); and Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 555, 95 S.Ct. 1239, 1244, 43 L.Ed.2d 448 (1975).9 School officials could therefore regulate the contents of the paper "in any reasonable manner." Hazelwood, 484 U.S. at 270, 108 S.Ct. at 569.

Looking to the factors in this case that the Court found significant in Hazelwood leads us to the same conclusion. The school district and its principals treated all publications similarly. Their intent is most clearly evidenced by written policies that explicitly reserve the right to control content. Their practices were not inconsistent with these policies. Pursuant to them, advertising in school-sponsored publications was subject to the same right of approval as articles in Spectrum. We therefore cannot conclude on the record in this case that the school district clearly intended to open its publications, including advertising space, for "indiscriminate use." Rather, like the school board in Hazelwood, the school district here showed an affirmative intent to retain editorial control and responsibility over all publications and advertising disseminated under the auspices of its schools.

The Hussey memorandum sets out district policy on what power principals were meant to have over advertising. It notes that newspapers and yearbooks are produced as part of the curriculum and that publications and journalism courses form an integral part of the school's educational program. It affirms that

[a] school has an important interest in avoiding the impression that it has endorsed a viewpoint at variance with its educational program. It is not at all unlikely that an advertisement may be viewed as school endorsement of its contents.

It states that there is no requirement that a high school publish either a paper or yearbook, or accept advertising, but that "[i]f a school publication does accept advertising, some categories of advertising may be excluded." Finally, it requires that if advertising is allowed which promotes one side of a controversial issue, advertisements promoting the opposite side must be accepted. In this way, the school district conferred on school principals broad authority and discretion to limit advertising which may not serve the best interests of the school or might create the impression that the school has endorsed a viewpoint at variance with its educational program.

Consistent with this general directive, individual schools established guidelines reflecting their intent to retain control over advertising in school-sponsored publications. In addition to delineating categories of advertisements that will not be accepted, the guidelines expressly "reserve[ ] the right to deny advertising space to any business and/or individual that does not serve the best interests" of the particular school. This complements the school board's policy concerning "controversial issues," requiring objective presentation of opposing points of view. Clark County School District Regulation 6124.2. Furthermore, just as the principal and teacher in Hazelwood had final approval over the contents of Spectrum, ultimate authority over what advertisements appear in school-sponsored publications rests with the principal or his assistant. The schools' consistent policy has been to limit advertising to subjects and entities that are in the best interests of the school and to require that those seeking to advertise obtain approval from the principal.

There is no evidence that advertisements in newspapers or yearbooks were accepted for any purpose other than to enable the school to raise revenue to finance the publications, and at the same time impart journalistic management skills to students.10 Nor does the evidence suggest that the high schools were "motivated by an affirmative desire to provide an open forum" for advertising in athletic programs; the schools did not accept advertising for any purpose other than to help defray the costs of this service. Cornelius, 473 U.S. at 805, 105 S.Ct. at 3450. As put in Cornelius, where the Court held that the government could exclude legal defense and political advocacy organizations from participation in the Combined Federal Campaign because it had not been designated as a public forum, "[t]he Government did not create the CFC for purposes of providing a forum for expressive activity. That such activity occurs in the context of the forum created does not imply that the forum thereby becomes a public forum for First Amendment purposes." Id; Greer v. Spock, 424 U.S. 828, 838 n. 10, 96 S.Ct. 1211, 1217 n. 10, 47 L.Ed.2d 505 (1966).

Both Hazelwood and Cornelius instruct that we also examine the nature of the government property involved in determining whether the forum is public or nonpublic. Hazelwood, 484 U.S. at 266, 108 S.Ct. at 567; Cornelius, 473 U.S. at 806, 105 S.Ct. at 3451; cf. Greer, 424 U.S. at 838, 96 S.Ct. at 1217 ("[T]he business of a military installation [is] to train soldiers, not to provide a public forum"). High schools foster learning experiences inside and outside the classroom and serve pedagogical as well as in locus parenti purposes. For this reason, educators have the right to control expressive activity that students, parents and other members of the public "might reasonably perceive to bear the imprimatur of the school." Hazelwood, 484 U.S. at 271, 108 S.Ct. at 570.

In light of the schools' policy in accepting advertising in school-sponsored publications, and their practice of retaining control and requiring prior approval, we conclude that the record fails to reveal the requisite "clear intent to create a public forum" Hazelwood requires. 484 U.S. at 270, 108 S.Ct. at 569. Therefore, these school-sponsored newspapers, yearbooks and athletic programs, including advertisements, are not public forums.

Planned Parenthood argues that Hazelwood simply says that high school publications are not traditional public forums and that beyond that courts should follow the public forum analysis set out in Perry, 460 U.S. at 45-47, 103 S.Ct. at 954-56; Cornelius, 473 U.S. at 800-04, 105 S.Ct. at 3447-50, and our decision in CARD, 790 F.2d at 1474-76. It urges that the district court erred in concluding that under Hazelwood, the school district had "plenary control" over the contents of its high school publications. Planned Parenthood further submits that the school district in fact created a limited forum for public advertising of goods and services that are lawfully available to high school age audiences. In support, it points to the wide variety of advertising which has been received and published and contends that it may not be discriminatorily excluded from that forum.11

We agree that a high school may create a public forum or designate a forum for limited purposes.12 Hazelwood does not say otherwise, but it does constrain the analysis by requiring that courts focus on unique attributes of the school environment and recognize broadly articulated purposes for which high school facilities may properly be reserved. 484 U.S. at 270-73, 108 S.Ct. at 569-71.13 We also agree that this case differs from Hazelwood in that Planned Parenthood is an outside entity seeking to advertise in school publications, whereas Hazelwood concerned students who wanted to have their articles published. It is likewise true that the schools solicited and accepted an array of advertising, including some for casinos which Planned Parenthood suggests belie the district's concern for the propriety of material for a teenage audience,14 and some for providers of health services to whom Planned Parenthood analogizes itself. Yet we believe these points misdirect the inquiry, which the Supreme Court has instead focused on the schools' intent. While relevant factors in evaluating intent, none compels a different result in this particular case.

The Court has often held that selective access to government property does not alone render it a public forum. For example, in Perry, even though many private groups not affiliated with the school had access to and used the internal school mail facilities, the mail system was not open for use by the general public, potential users of the system were required to secure permission from the individual principals and there was no indication that permission was granted as a matter of course. The Court concluded that the property remained a nonpublic forum subject to reasonable regulation. Perry, 460 U.S. at 47, 103 S.Ct. at 956. In Cornelius, the Government's consistent policy was to limit the Combined Federal Campaign to "appropriate" voluntary agencies and require agencies seeking admission to obtain permission from certain officials. Cornelius, 473 U.S. at 804, 105 S.Ct. at 3450. Again, the Court held that "[s]uch selective access, unsupported by evidence of a purposeful designation for public use, does not create a public forum." Id. at 805, 105 S.Ct. at 3450. Most recently, in United States v. Kokinda, 497 U.S. ----, 110 S.Ct. 3115, 3121, 111 L.Ed.2d 571 (1990) (plurality), four Justices concluded that a sidewalk leading from a parking lot to a post office was a nonpublic forum. The plurality noted that although "individuals or groups have been permitted to leaflet, speak, and picket on postal premises, ... a practice of allowing some speech activities on postal property do[es] not add up to the dedication of postal property to speech activities." Id.

As in Perry and Cornelius, school officials in this case require permission and approval prior to granting access to high school publications. Although Planned Parenthood contends that it was the only potential advertiser excluded from the publications, the record does not demonstrate that permission and approval to advertise are granted as a matter of course. We therefore find nothing in Perry or Cornelius to support a conclusion that allowing some outside organizations to advertise converts the school-sponsored publications into public forums.15

Nor do we believe that this case is controlled by CARD, as Planned Parenthood urges. In CARD, which we decided before the Court decided Hazelwood, we held a student newspaper, along with its advertising spaces, to be a limited public forum. CARD, a nonprofit organization involved in counseling young men on alternatives to military service, sought to advertise in several school papers. Despite the fact that the papers accepted military recruitment advertisements, the school district refused to publish the ad CARD submitted.

Because it believed that newspapers are devoted entirely to expressive activity, and the school board's admitted policy and practice was to allow the students to discuss any topic in the newspapers and allow non-students to avail themselves of the forum as long as their speech consisted of advertisements offering goods, services or vocational opportunities to students, the CARD majority believed the evidence indicated an intent to create a limited public forum. CARD, 790 F.2d at 1476. Accordingly, it concluded that the school district could not exclude the advertisement without demonstrating a compelling reason. Alternatively, the majority held that assuming the school board was correct in its assertion that the school newspapers were a nonpublic forum, the exclusion of the proffered advertisement was unreasonable and constituted impermissible viewpoint discrimination. Id. at 1478.16

Planned Parenthood maintains that the schools' solicitation of advertisements from outside entities puts this case squarely within CARD rather than Hazelwood, which Planned Parenthood characterizes as applying only to student expression. We are not persuaded by Planned Parenthood's argument that the nature of the speech at issue here, advertisements from an outside entity rather than student speech, places this case beyond the reach of Hazelwood. Although the facts of Hazelwood dealt with student expression, its rationale was not so limited. The Court specifically spoke in terms of "school-sponsored publications, theatrical productions, and other expressive activities," 484 U.S. at 271, 108 S.Ct. at 570, and remarked on a school's ability to regulate reasonably the speech not only of students, but also "teachers, and other members of the school community."