Court Says Atlanta Must Grant Pacifists Access to Schools
Peace activists in Atlanta scored a major victory this month when a federal district judge ruled that they have the right to enter the city's public schools to express their views on military service.
The ruling marked a defeat for the U.S. Justice Department, which had intervened in the case to argue that U.S. military recruiters should have special access to high schools for national-security reasons. It was the first time such a legal argument had been made, lawyers said.
In a March 7 ruling, U.S. District Judge Marvin H. Shoob held that the city's board of education excluded the Atlanta Peace Alliance from school career days solely "to suppress'' the viewpoint of its members, and by so doing violated their First Amendment rights.
The peace group and several individuals filed the lawsuit in 1984 charging that the school board's decision to allow military recruiters, but not peace activists, into the city's 22 high schools, violated their constitutional right to freedom of speech.
The decision expands on an August 1986 partial ruling in the case that was reached without a trial.
In the earlier ruling, Judge Shoob ordered the school board to give members of the peace group an opportunity, "substantially equal to that afforded military recruiters,'' to offer students information on peace-oriented careers and education programs, and suggested that the board craft official regulations stipulating who could participate in school career days.
The judge, however, deferred until this month his ruling on the broader question of whether the activists had the right to enter the schools to present their views on the merits of military service. (See Education Week, Sept. 10, 1986.)
"The court does not rule that the school must allow the [peace alliance] to present any and all material to the students,'' the judge wrote this month. "The schools may exclude material presented by any outside source that is misleading, inaccurate, sexually explicit, [or] advocative of illegal conduct.''
But the schools may not, he stated, "exclude information simply because it is critical of the military.''
The school district, the judge stated, must not deny the peace activists the opportunity either to express their views at school career days or to place their literature on school bulletin boards and in the offices of guidance counselors.
The judge will issue his final orders in the case after lawyers for the peace group submit to him a proposed judgment and permanent injunction.
A lawyer for the district said last week that the school board had not yet decided whether it will appeal the ruling. But, he said, "the odds are that an appeal will be filed.''
'Flaws' in Federal Argument
A spokesman for the Justice Department, which in March 1985 requested and received permission to intervene in the case on the side of the district, said federal lawyers will "make a decision on how to proceed'' after Judge Shoob sets final orders.
In papers filed with the court, the department argued that military recruiters should have "preferred access'' to the schools for "compelling'' reasons of national security. (See Education Week, Dec. 11, 1985.)
In his earlier ruling, Judge Shoob noted a number of "flaws'' in the department's argument that military recruitment of students would be jeopardized if the courts allowed peace groups access to public schools.
The department did not show that the schools would be likely to curtail military recruitment rather than to grant access to peace activists if required to do so, nor did it show that the military services lack other means of talking with students, the judge said in that ruling.
"The mere convenience of contacting them at high schools,'' he stated, "is not a compelling state interest.''
The primary question before Judge Shoob was whether school career days, bulletin boards, and guidance counselors' offices are public or nonpublic forums, and to what degree the school board may regulate access to them. Under U.S. Supreme Court precedents, free speech may be limited to varying degrees depending on the nature and traditional use of the forum in question.
Because individuals and groups have historically participated in career-day programs at the invitation of the schools and not at their own request, and because those invitations were not made indiscriminately, Judge Shoob concluded that the programs are nonpublic forums.
As such, the judge wrote, the board "may make reasonable content-based access restrictions that are viewpoint-neutral and that are not designed to suppress a particular point of view.''
The district, however, failed to meet this test, said Judge Shoob.
The board's initial decision to exclude only the peace activists from career-day activities, and the written policy and regulations the board later adopted to govern career-day participation, did not pass constitutional muster, the judge stated. They were impermissibly motivated by a desire to suppress the activists' viewpoint, he held.
He also held that since the district has not restricted access to school bulletin boards and counselors' offices, they are public forums. Consequently, any attempt to restrict the activists' access to them "would run afoul of the First Amendment,'' he wrote.
'We Got Everything'
One activist said last week that the peace alliance could not have hoped for a better ruling.
"We got everything we asked for,'' said E. Brian Taylor, one of 50 active members of the alliance. "Now, for the first time, young Atlantans can get information in the schools about both sides of military service.''
Bruce Beerman, a lawyer for the board of education, said last week that the ruling creates "a lot of problems for the school district.''
"Who is supposed to make the determination as to whether the oral presentations or written material fits within the definition the judge gave for what is acceptable?'' Mr. Beerman said. "If we decide that some of the material is false or misleading and exclude it, the peace alliance would drag us back into federal court saying we excluded it because we disagree with its content.''
"The school system, and most school systems, have zealously guarded the exent to which outside groups have been given access to students,'' Mr. Beerman continued. "The peace alliance is a fairly moderate group, but what happens when another group comes in that is really out there on the fringes? Where do you draw the line?''