In a surprising turnaround, U.S. Justice Department lawyers are expected to ask a federal appeals court next week to uphold a lower-court order requiring the Atlanta school board to allow peace activists to attend “career days” alongside military recruiters at the city’s high schools.
In papers filed with the U.S. Court of Appeals for the 11th Circuit, government lawyers say they have “reluctantly” agreed that U.S. District Judge Marvin H. Shoob was correct last year when he ruled that the city school board barred the activists from the events solely on the basis of their anti-war positions.
Such action, the government’s brief states, represents “viewpoint discrimination” in violation of the First Amendment’s guarantee of freedom of speech.
The brief goes on to note, however, that it would be “well within the bounds of reasonable educational judgment” and “entirely consistent with the First Amendment” for the Atlanta board and other school officials elsewhere to enact regulations designed to insulate career days and similar curriculum-related events from all political controversies.
In fact, it suggests that the Atlanta officials could enact such rules at some point in the future, as long as they are not crafted to discriminate against a particular group’s views.
Limiting Suit’s Impact
Robert D. Kanenshine, a Justice Department lawyer involved in the case, Searcey v. Harris, said the federal government’s change of position represents an attempt to limit the suit’s impact on similar disputes in the future.
In the early phases of the case, the department obtained permission to participate on the side of Atlanta officials. At the district-court level, government lawyers attempted unsuccessfully to convince Judge Shoob that military recruiters should have “preferred access” to schools for “compelling reasons of national security.” (See Education Week, March 23, 1988.)
The dispute began in 1983, when Atlanta Peace Alliance officials met with the district’s superintendent, Alonzo Crim, seeking access to district schools’ career-day and youth-motivation-day programs.
Mr. Crim initially granted the apa’s request. But the city’s school board later reversed the superintendent’s decision after a local newspaper published an editorial harshly criticizing the move.
Suit Filed
The apa filed suit in 1984 charg8ing that the school board’s decision to invite military recruiters, but not peace activists, to career-day events violated the apa’s right to freedom of speech.
In a March 1988 ruling, Judge Shoob found that the board could not exclude the apa from taking part in the events “simply because it is critical of the military.”
The judge noted, however, that under prior U.S. Supreme Court rulings, the school board “may make reasonable content-based access restrictions that are viewpoint-neutral, and that are not designed to suppress a particular point of view.”
A Question of Control?
In court documents, the Atlanta board’s lawyers contend that their clients are not attempting to keep peace activists out of the city’s 22 high schools.
Rather, they say, district officials are concerned about their ability to control the type of material presented to students by outside interests.
“This is a classic confrontation about the right of a local school system to control its curriculum and its environment for students, and the right of parents and community members to come on campus and express their views,” said Bruce H. Beerman, a lawyer for the board.
Mr. Beerman said board members were concerned that the anti-war materials presented by the peace activists at career days would spark a ideological debate that would distract students from the “motivational, positive” message of the event.
Findings Contested
During hearings before the 11th Circuit Court scheduled to begin March 21, the board’s lawyers plan to argue that Judge Shoob’s ruling was erroneous on several points.
For example, in their brief they contend that, contrary to the judge’s finding, the board’s policy regulating career-day participants is “viewpoint-neutral.”
In addition, their brief argues that, in deciding the case, Judge Shoob misapplied the Supreme Court’s ruling last year in Hazelwood School District v. Kuhlmeier.
In that case, the High Court held that educators have broad authority to control student speech that occurs “as part of the school curriculum,” provided that their decision has “a valid educational purpose.”
If Hazelwood had been correctly applied by the Judge Shoob, the board’s brief argues, “the school district’s regulations would have passed muster.”
