386 F.3d 514 | 3rd Cir. | 2004
ALITO, Circuit Judge:
Francis J. Manion In this appeal, Stafford Township American Center for Law and Justice School District (“Stafford”) and Stafford 6375 New Hope Road officials (collectively “Stafford”) contest a New Hope, KY 40052 preliminary injunction granted by the Attorney for Amicus-Appellee, United States District Court for the District Joseph J. Hills of New Jersey in favor of Child Evangelism Fellowship of New Jersey,
Douglas Laycock Inc. and Child Evangelism of New Jersey, University of Texas at Austin Inc.––Bayshore Chapter (collectively School of Law “Child Evangelism”). Finding that Child 727 East 26th Street Evangelism was likely to succeed in Austin, TX 78705 showing that Stafford was engaging in Attorney for Amicus-Appellees, viewpoint discrimination and that this National Association of Evangelicals discrimination was not required by the Clifton Kirkpatrick, As Stated Clerk Establishment Clause, the District Court of the Presbyterian Church (U.S.A.) ordered Stafford to treat Child Evangelism Union of Orthodox Jewish Congregations like other community organizations with of America respect to the distribution and posting of Pat Afalese materials and participation in so-called Cathy Capozzi “Back-to-School nights.” We affirm. Gretchen Davis
I.
B. Keith Drayton Kimberly Freewsick
A.
Keith Ruff Stafford operates four schools, Lori Ruff including Ocean Acres Elementary School (“Ocean Acres”) and McKinley Avenue
Julie Underwood Elementary School (“McKinley”). Ocean National School Boards Association Acres instructs students in grades pre- 1680 Duke Street Kindergarten through second, and Alexandria, VA 22314 McKinley instructs students in the third Attorney for Amicus-Appellee, and fourth grades. JA 304. [1] Stafford has National School Boards Association adopted written policies on the use of its Pupils shall not be used to facilities by community groups [2] and the
distribute partisan materials distribution of community group materials or partisan inform ation to students. [3] In addition, Stafford has pertaining to a school or developed practices concerning the general election, budget or placement of flyers on school walls and bond issues, or negotiations. the distribution of flyers and the staffing of Pupils shall not be exploited tables at Back-to-School nights. for the benefit of any
individual, group, or profit- Distribution of community group making organization. materials . Stafford proclaims that it has an overall policy of assisting community No staff member may groups. Its written policy on the use of its distribute any materials on facilities states that the schools should be school property without used “to the fullest extent possible by prior approval of the community groups and agencies.” JA 624. superintendent. Similarly, its written policy on the
All surveys, questionnaires distribution of community group literature or other similar items expresses a “commitment to assist all r e q u i r i n g p u p i l o r organizations in our rapidly growing parent/guardian response community.” JA 190 (emphasis added). shall be reviewed and This policy sets out the following a p p r o v e d b y t h e standards regarding materials that may be superintendent prior to handed out to students: distribution. Material being sent home
JA 189.
with pupils should relate to school matters or pupil- To implement these standards, r e l a t e d c o m m u n i t y Stafford has adopted the following specific activities. Except when it rules: pertains to the individual
1. The principal is pupil, all such material must authorized to duplicate be approved in advance by scheduled memos and send the superintendent/designee. the m home with the c h i l d r e n . A l l s c h o o l activities may be advertised on these memos. [2] See “Use of School Facilities.” JA 624-34. 2. The following non-profit organizations are [3] See “Distribution of Materials by permitted to distribute Pupils and Staff Policy.” JA 189. information to go 4. All activities must h o m e w i t h t h e be directly associated with children: the children who are
enrolled in the Stafford a. PTA Township School District. b. Stafford Athletic 5. Exceptions: The Association P T A m a y c o l l e c t c. Boy Scouts/Girl Scouts membership fees and class sponsor moneys through the d. Four-H Club office of the principal. e. Southern Regional High 6 . A l l o t h e r School associations must receive f. Lions Club special approval from the board of education. g. Civil Defense
JA 190-91.
h. Stafford Township Fire Department The Stafford policy thus addresses both the groups whose materials may be i. Elks distributed and the types of materials that j. Other groups will are allowed. As for the groups, ten named be added at discretion of organizations are specifically approved, the superintendent. and the superintendent is given the
“discretion” to add other non-profit 3. None of the groups. [4] Although Stafford has not kept a a f o r e m e n t i o n e d comprehensive record of the groups whose organizations may solicit materials have been sent home at Ocean money through the children Acres and M cKinley, these groups include for any activity. The board the Cub Scouts, Ocean County Girl Scouts, permits them to advertise Long Beach Island Foundation of the Arts their fund raising activity, and Sciences, Southern Ocean County however, the principal has Hospital, Stafford Wrestling Club, College no authority to collect Funding 101, Stafford Basketball money for the associations. Association, Municipal Alliance, Ocean Flyers must be prepared by t h e o r g a n i z at i o n an d packaged in 35's then given [4] No explanation for the selection of to the school secretaries who will distribute to the the ten named groups is provided, and no criteria to guide the exercise of the target group.
superintendent’s discretion are revealed. County Library, Stafford Township The process of distribution works as Volunteer Fire Company # 1, Stafford follows. Community organizations Basketball Club, Pop Warner football, and produce flyers or other information at their the PTA. JA 119, 199, 210(c). own expense and place these materials in
faculty mailboxes, and the teachers then As for the contents of the materials, distribute these materials to the students, it appears that five requirements must be usually at the close of the school day just met. First, materials other than those prior to dismissal. JA 200. [6] Except when pertaining to a particular student must be a flyer “deals with a current curriculum, approved in advance by the superintendent health or safety issue,” it appears that the or (perhaps) by a designee. [5] Second, there materials sent home are not discussed in must be a nexus between the content of the class. Id. As the District Court noted, materials and the students or school. It is “[a]lthough [the] distribution of materials said that “[m]aterial being sent home with occurs and flyers remain hung during pupils should relate to school matters or school hours . . . the messages of these pupil-related community activities” and fora are not incorporated into the that “[a]ll activities must be directly instructional component of the school associated with the children who are day.” Child Evangelism Fellowship of enrolled in the Stafford Township School N.J. v. Stafford Twp. Sch. Dist., 233 F. District.” (emphasis added). Third, Supp. 2d 647, 664 (D.N.J. 2002). materials are prohibited if they are “partisan” or if they relate to an election or Back-to-School Nights . Each fall, “negotiations” (presumably Stafford’s Ocean Acres and McKinley hold Back-to- negotiations with its teachers or other School nights. These events are intended employees). Fourth, it is said that pupils for the benefit of parents, but occasionally are not to be “exploited for the benefit of a child accompanies a parent or other adult any individual, group, or profit-making attendee. JA 194-95. Stafford has no organization.” Fifth, with the exception of formal policy governing the materials that PTA materials, documents sent home may may be displayed at these events or the not solicit money but may advertise fund- groups that are allowed to staff raising activities. “information tables,” but Stafford asserts that it uses the same procedures employed policy governing the posting of community with respect to the distribution of group flyers on school walls, Stafford has materials. JA 203. When requests are allowed a variety of groups to post made for use of the tables, the material on the walls of Ocean Acres and Superintendent gives priority to the largest McKinley. These groups include the organizations, those that are viewed as Rotary Club, Ocean County First Night having the greatest impact on the Activities, the PTA, the New Jersey curriculum, and those that emphasize School Boards Association, the Children’s learning and safety and health issues. Id. Hospital of Philadelphia, the American Stafford does not claim that any group Society for the Prevention of Cruelty to other than Child Evangelism was ever Animals, the United States Marine Corps’ denied the opportunity to display its Toys for Tots Drive, and local theater literature or staff a table based on the groups. JA 205-06. Stafford has not content of the material or the nature of the argued that its policy or practice with group, but on one occasion, the Boy respect to the posting of flyers on the walls Scouts’ request for a table was denied of the schools is any more restrictive than because of space limitations. Id. its policy regarding the distribution of
materials. As the District Court wrote: Stafford does not maintain a “[T]he school district does not distinguish comprehensive list of the groups that have the criteria for access to the school-wall previously requested or have been forum from the distribution and Back-to- permitted to participate in Back-to-School School Night fora . . . . Nor does the nights, but groups whose materials have school district indicate that groups been distributed include the Ocean County promoting character building and moral Library System, the PTA, the Municipal and social development, such as the Girl Alliance/D.A.R.E., STEA, Boy Scouts, Scouts and Boy Scouts, would be and Stafford Township Recreation. Id. at excluded.” Child Evangelism of N.J., 233 202. The organizations whose materials F. Supp. 2d at 661. have been distributed at the Back-to- School nights may have staffed tables at B. those events “at one time or another.” Id.
Child Evangelism describes itself as At the Ocean Acres Back to School night a “Bible-centered, worldwide organization in September 2002, Stafford also allowed composed of born-again believers whose various community groups, including the purpose is to evangelize boys and girls Rotary Club and the American Cancer with the Gospel of the Lord Jesus Christ Society, to staff and promote “Extreme and to establish (disciple) them in the Event,” a sporting event involving bikers, Word of God and in a local church for in-line skaters, and skateboarders. JA 237. Christian living.” JA 402. Child Posting materials on school walls . Evangelism sponsors Good News Clubs, Although Stafford does not have a written which host weekly meetings for school- age children during after-school hours. choices that will effect [sic] The stated objectives of the Good News the rest of their lives. Using Clubs include instilling or cultivating the Bible as the main “self-esteem, character, and morals in textbook, you will learn how children,” providing children with a to apply the stories and “positive recreational experience,” biblical principles to your providing a community where “children life. feel loved, respected, and encouraged,”
Club Activities include a teaching children “life skills and healthy snack, singing, learning lifestyle choices,” teaching children to Bible verses, listening to a “encourage and lead other children” to the Bible lesson and playing same sorts of choices, improving “memory learning games. skills, grades, attitudes, and behavior at home,” improving relations among the . . . . races, instructing children to “overcome
Have a fun time as you learn feelings of jealousy” and to treat others as from God’s Word . . . . they want to be treated themselves, teaching children to be “obedient and to JA at 212-13. respect persons in authority,” and
Students cannot attend a meeting of instructing children to “follow the the Good News Club without the consent numerous other moral and other teachings of a parent or a guardian. See JA 376. of Jesus Christ.” JA 374. A Good News When a student first attends a meeting, the Club flyer states: “Good News Clubs are student must bring a written permission groups meeting one hour per week slip. See JA 212. In addition, Child designated to serve boys and girls through Evangelism’s flyers clearly state that the Bible-Oriented and character building group is not school-sponsored. See JA learning and moral object lessons, as well 215 (Child Evangelism Flyer stating: “This as recreational activities like singing and is not a school-sponsored activity.”). Bible review games.” JA 216.
C.
Another Child Evangelism flyer describing the Good News Club states: The events that led to the filing of this action began in early 2002. Child You’re Invited to Good Evangelism submitted an official Stafford News Club! form, “Application for Use of Building,” Purpose of the Club: seeking permission to use a classroom at Regular weekly meetings McKinley for weekly one-hour after- will provide various fun- school Good News Club meetings. JA filled activities to help 630. This form was signed as approved by young people make smart the principal on March 8, 2002, and by the
superintendent on M arch 11, 2002. Child Counsel for Stafford subsequently Evangelism also asked to have its flyers advised Child Evangelism that its request and permission slips distributed to pupils to use the school facilities had been at McKinley, but according to Child approved, see JA 630, but Child Evangelism, the superintendent orally Evangelism’s other requests were denied rejected this request on the advice of due to “concerns about violating the counsel “due to Establishment Clause Establishment Clause, the effect of [Child concerns.” JA 135. Evangelism’s] requests on the children in
the school system’s care, the effect of In May 2002, Child Evangelism [Child Evangelism’s] requests on the contacted the school district again and relationship between the schools and the asked, among other things, that its flyers parents as well as the effect of opening the and permission slips be distributed to schools as limited public fora in the future pupils and that Child Evangelism if the schools . . . compl[ied] with [Child representatives be allowed to hand out Evangelism’s] requests.” JA 201. materials and staff a table at Back-to- Stafford also believed that distributing School nights. Child Evangelism of N.J., Child Evangelism’s materials would “tend 233 F.Supp. 2d at 652. The school district to create divisiveness between and rejected these requests. In the summer of amongst parents to parents and children to 2002, Child Evangelism subm itted children, as well as the staff.” JA 210(e). applications to use classrooms at McKinley and Ocean Acres during the The District Court denied the upcoming school year, as well as requests request for temporary restraints but issued to have Good News Club materials an order to show cause why a preliminary distributed to pupils. JA 633-34. injunction should not be issued. After
further proceedings, the District Court On September 12, 2002, the school granted the motion for a preliminary district responded but did not provide a injunction, finding that Child Evangelism final decision on the requests. Because the was likely to succeed on the merits of its dates of the Ocean Acres and McKinley claim under the Free Speech Clause of the Back-to-School nights were approaching, First Amendment with respect to the Child Evangelism advised Stafford that it distribution of its materials, the posting of would be forced to commence litigation, its materials on the school walls, and and it subsequently filed the present action participation at Back-to-School nights. and sought a temporary restraining order. Child Evangelism, 233 F. Supp. 2d at 648. Child Evangelism’s complaint alleged that The District Court concluded that Child Stafford was violating its rights to freedom Evangelism was asserting the right to of speech and the free exercise of religion speak in several different fora, including under the federal and state constitutions, as what it termed the “distribution,” “school well as its federal constitutional right to wall,” and “Back-to-School” fora. Id. at equal protection. 659. The Court concluded that it was equal protection claims were not likely to likely that these were “limited public prevail, there was a substantial possibility fora,” but the Court found it unnecessary that the Stafford policy would be held to to decide that question, because viewpoint be facially unconstitutional on the ground discrimination is unconstitutional even in of vagueness. Id. at 665-66. Finding that a non-public forum. Id. the irreparable harm that would be
suffered by Child Evangelism if a With respect to the “distribution preliminary injunction did not issue forum,” the District Court held that Child outweighed any harm to Stafford, and Evangelism had sought “to speak on a finding that the public interest would be topic [that was] otherwise permissible,” served by granting the requested relief, the but had been denied that opportunity District Court issued a preliminary because it wished to address the topic injunction ordering Stafford to treat Child “from a religious perspective.” Id. at 660. Evangelism the same as other community The Court noted that other groups that groups with regard to the distribution and conducted “children’s activities for posting of literature and participation at c h a r a c t e r b u i l d i n g a n d s o c i a l Back-to-School nights. Stafford then took development,” such as the Girl Scouts, had the present appeal. been permitted to have their literature distributed. Id. The Court reached a II. similar conclusion with respect to the
We ordinarily use a three-part “Back-to-School night” and “school wall” standard to review a District Court’s fora. Id. at 661. [7] decision to grant a preliminary injunction. The Court then concluded that The District Court’s findings of fact are Stafford was likely to fail in its argument reviewed for clear error; the District that discrim ination against Child Court’s conclusions of law are evaluated Evangelism was necessary in order to under a plenary review standard; and the comply with the Establishment Clause. Id. ultimate decision to grant the preliminary 662. The Court further held that, although injunction is reviewed for abuse of Child Evangelism’s free exercise and discretion. See Warner-Lambert Co. v.
Breathasure, Inc., 204 F.3d 87, 89 n.1 (3d Cir. 2000). When First Amendment rights are at issue, however, this standard is [7] The Court held that Child modified. Although we normally will not Evangelism was not likely to prevail on its disturb the factual findings supporting the claim that Stafford had engaged in disposition of a preliminary injunction viewpoint discrimination in refusing to motion in the absence of clear error, we post Good News materials on certain have a constitutional duty to conduct an school bulletin boards. Child Evanelism, independent examination of the record as 233 F.Supp. 2d at 660. This issue is not a whole when a case presents a First before us in this appeal. Amendment claim. See Tenafly Eruv contention that the speech at issue in this Ass’n v. Borough of Tenafly, 309 F.3d case – i.e., the materials that Child 144, 157 (3d Cir. 2002). Evangelism wished to have distributed and
posted – represented school-sponsored “The test for preliminary relief is a speech, not private speech, and that familiar one. A party seeking a Stafford was therefore allowed to control preliminary injunction must show: (1) a the content of that speech under likelihood of success on the merits; (2) that Hazelwood Sch. Dist. v. Kuhlmeir, 484 it will suffer irreparable harm if the U.S. 260 (1988), so long as the regulation injunction is denied; (3) that granting served a legitimate pedagogical purpose. preliminary relief will not result in even Appellant’s Br. at 31. This argument falls greater harm to the nonmoving party; and very far from the mark. (4) that the public interest favors such relief.” KOS Pharm., Inc. v. Andrx Corp., School- or government-sponsored 369 F.3d 7 0 0 (3 d C ir. 2 004). speech occurs when a public school or Consequently, “a panel entertaining a other government entity aims “to convey preliminary injunction appeal generally
its own message.” Rosenberger v. Rector decides only whether the district court and Visitors of the Univ. of Va., 515 U.S. abused its discretion in ruling on the 819, 833 (1995). By contrast, when a request for relief and generally does not go school or other government body into the merits any farther than is facilitates the expression of “a diversity of necessary to determine whether the views from private speakers,” the resulting moving party established a likelihood of expression is private. Id. at 834. success.” The Pitt News v. Pappert, 2004 Here, Stafford’s purpose is not to WL 1689681 at *4 (3d Cir. 2004).
convey its own message through the However, “a panel is not always required distribution and posting of community to take this narrow approach. If a group materials but to “assist all preliminary injunction appeal presents a organizations” in the community. JA 190 question of law ‘and the facts are (emphasis added). Materials that are established or of no controlling relevance,’ handed out are written and paid for by the panel may decide the merits of the community groups, and Stafford teachers claim.” Id. at *4 (emphasis in original do no more than retrieve the materials omitted); see also Thornburgh v. Am.
from their mailboxes and distribute them College of Obstetricians & Gynecologists, to the children, usually at the end of the 476 U.S. 747, 756-57 (1986); Maldonado school day. The teachers do not discuss or v. Houstoun, 157 F.3d 179, 183-84 (3d
express approval of the materials. Cir. 1998). Stafford’s standards for acceptable III. materials are broad, and a great many community groups have had their flyers We first consider Stafford’s distributed. Contrary to Stafford’s suggestion, invocation had previously been delivered the present case bears little resemblance to by the school’s student chaplain. Id. at cases involving school-sponsored speech. 309. In addition, the speech was In Hazelwood, a high school newspaper incorporated into an official school- was held to represent school-sponsored sponsored event (a high school football speech where: the paper was the official game) that was staged on school property, school newspaper; it was printed with and the speech was broadcast on the school funds and produced by students in school’s public address system. Id. at 307- a journalism class that was part of the 08. Moreover, this event was one that school curriculum; the students’ work was played a central part in the social life of reviewed and graded by the teacher; a the school and that some students (football faculty member closely supervised all team and band members) were required to aspects of the paper, including the attend. Id. at 311-12. The school also selection of the editors, the number of regulated the identity of the speaker. Id. at pages in each edition, the assignment of 303-04. Only one student could speak, stories, and the editing of everything that and the prescribed method of selecting the appeared in the paper, including letters to speaker – an election – insured that editor; and the entire paper was reviewed minority views would probably never be by the principal before publication. See expressed. Id. Finally, the school Hazelwood, 484 U.S. at 262, 268-69. regulated the content of the speech,
prescribing that it had to be an Here, by contrast, the Good News “invocation,” a type of address that Club flyers and permission slips were naturally suggests a prayer, and that it obviously not official Stafford documents. could not be denominational or On the contrary, Stafford had no hand in proselytizing. Id. Not one of these writing the materials in question and did features is present in the case at hand. not pay for them. Nothing in the materials suggested that Stafford had any role in While this case is unlike their production or approved of their Hazelwood and Santa Fe, it is comparable content. Indeed, the Good News Club to cases in which public educational flyer contained an express disclaimer institutions have properly facilitated stating that the Good News Club was “not speech by a broad array of private groups. a school sponsored activity.” JA 215. See, e.g., Good News Club v. Milford
Cent. Sch., 533 U.S. 98 (2001) (use of Nor do the materials at issue here school facilities by community groups); resemble the pre-game invocation that was Lamb’s Chapel v. Ctr. Moriches Union held to be school-sponsored speech in Free Sch. Dist., 508 U.S. 384 (1993) Santa Fe Indep. Sch. Dist. v. Doe, 530 (same); Rosenberger, 515 U.S. 819 U.S. 290 (2000). There, past practice (university program subsidizing broad clothed the speech with the mantle of array of student activities). Like those school approval, since the pre-game viewpoint.” Id. (citations omitted). [8] cases, this case involves private, not school-sponsored, speech.
Second, even if the three fora were IV. not limited public fora but were closed, Stafford still could not engage in Stafford next contends that, even if viewpoint discrimination. As the Supreme the speech at issue here was private, Court observed in Lamb’s Chapel, 508 Stafford was permitted to regulate the U.S. at 392-93 (emphasis added), content of the speech because the three “[c]ontrol over access to a nonpublic fora identified by the District Court were forum can be based on subject matter and “closed.” We disagree. speaker identity so long as the distinctions First, as the District Court drawn are reasonable in light of the suggested, it is evident that Stafford purpose served by the forum and are created limited public fora when it opened viewpoint neutral.” See also Cornelius v. up the three fora at issue for speech by a NAACP Legal Def. & Educ. Fund, 473 broad array of community groups on U.S. 788, 806, 811 (1985) (the “existence matters related to the students and the of reasonable grounds for limiting access schools. Stafford had no constitutional to a nonpublic forum . . . will not save a obligation to distribute or post any regulation that is in reality a facade for community group materials or to allow any viewpoint-based discrimination”); Christ’s such groups to staff tables at Back-to- Bride Ministries, Inc. v. Southeastern Pa. School nights. But when it decided to Transp. Auth., 148 F.3d 242, 247 (3d Cir. open up these fora to a specified category 1998). Therefore, assuming for the sake of groups (i.e., non-profit, non-partisan of argument that the fora at issue in this community groups) for speech on case were non-public, if Stafford engaged particular topics (i.e., speech related to the in viewpoint discrimination, it violated students and the schools), it established a Child Evangelism’s free-speech rights. limited public fora. See, e.g., ISKCON v.
V.
Lee, 505 U.S. 672, 678 (1992); Widmar v. Vincent, 454 U.S. 263 (1981). As a We thus turn to the central consequence, it is bound to “respect the questions in this case – whether Stafford lawful boundaries it has itself set.” excluded Child Evangelism from the fora Rosenberger, 515 U.S. at 829. It “may not at issue pursuant to viewpoint-neutral exclude speech where its distinction is not ‘reasonable in light of the purpose served criteria that are reasonable in light of the not seek to exploit children for commercial purpose of the fora or whether, as the gain; and (5) they do not solicit money. District Court suggested, Stafford engaged
In its brief, Stafford offers a list of in viewpoint discrimination. The answers other, purportedly viewpoint-neutral to these questions are clear. reasons for excluding Child Evangelism. A. Stafford contends that it excludes: (1) all groups representing “special interests” We have summarized Stafford’s (Appellants’ Br. at 38), (2) all groups that rules regarding access to the distribution do not restrict themselves to “mundane forum, and as the District Court noted, it recreational activities” (id. at 34), (3) all appears that Stafford’s criteria for access groups whose views are “divisive” or to the school-wall and Back-to-School “controversial” (id. at 29-30), (4) all night fora were similar. Thus, the relevant speech that promotes any point of view, requirements seem to be as follows: the whether “religious, commercial or secular” group must be non-profit and the speech (id. at 21), (5) all groups that proselytize must: (1) receive prior approval by the (id. at 28), and (6) all speech about district, (2) have a nexus with the students religion (id.). These rationalizations are or school, (3) be non-partisan and either incoherent or euphemisms for unrelated to an election or labor viewpoint-based religious discrimination. negotiations, (4) not seek to “exploit[]” children “for the benefit of any individual, (1) Every group in a sense group, or profit-making organization,” and represents “special interests,” namely, the (5) not solicit money (except for the PTA). interests to which the group is dedicated. See JA 189-91. Even a noncontroversial and beneficent
organization like the Stafford PTA Child Evangelism and its materials represents “special interests” – the satisfy all the view point-neutra l interests of the Stafford pupils and schools requirements set out in this list. Indeed, – and at times even these interests may Stafford’s briefs make no direct effort to conflict with those of others in the show that Child Evangelism’s materials community. Thus, if this criterion is fail to meet any of these requirements, and literally interpreted and applied, it fails to any such effort would be fruitless. Child set a meaningful, viewpoint-neutral Evangelism is a non-profit group, and (1) standard. Of course, the term special it sought advance approval from the interest group is often used to express the superintendent; (2) its materials, which view that the group in question is invite students to attend club meetings on dedicated to ends that conflict with the school premises after school, relate to the common good. If Stafford uses the term in students and the school; (3) the materials this sense, the criterion is not viewpoint- are not “partisan” and have nothing to do neutral. with elections or negotiations; (4) they do (2) Stafford’s argument that it Moines Indep. Cmty. Sch. Dist., 393 U.S. excludes groups that promote anything 503, 509 (1969). other than “mundan e recreational
(4) All community-group speech activities” is hard to take seriously. If a promotes a point of view. All of the group of parents organized a youth team in specifically approved groups, including a sport not popular in this country – say, such familiar and well-regarded groups as cricket – would Stafford refuse to the PTA and the 4-H Club, have a point of distribute their flyer on the ground that the view. Thus, this criterion is devoid of activity was not “mundane”? If parents meaning. organized a club dedicated to the study of an uncommon foreign language, would (5) To proselytize means both “to Stafford refuse to hand out their materials recruit members for an institution, team, or because the activity was neither group” and “to convert from one religion, “mundane” nor “recreational”? Nothing in belief, opinion, or party to another.” the record suggests that Stafford would W EBSTER ’ S T HIRD N EW I NTERNATIONAL rebuff such requests. D ICTIONARY 1821 (1976). The record
shows that Stafford does not reject groups (3) To exclude a group simply that proselytize in the sense of recruiting because it is controversial or divisive is members. Many of the groups specifically viewpoint discrimination. A group is approved in the Stafford rules do so, and controversial or divisive because some the record contains numerous flyers – take issue with its viewpoint. See produced by groups from the Cub Scouts Cornelius, 473 U.S. at 812 (warning that to the local wrestling club – that Stafford “the purported concern to avoid controversy excited by particular groups may conceal a bias against the viewpoint advanced by the excluded speakers”). during the school day if it “materially and Although the ten groups specifically substan tially interfere[s] with the approved by Stafford are apparently not requirements of appropriate discipline,” controversial or divisive in that but an “und ifferentiated fea r or community, at least some would be apprehension of disturbance is not enough controversial and divisive elsewhere. to overcome the right to freedom of Even in the school setting, “a mere desire expression.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 508-09 to avoid the discomfort and unpleasantness that always accompany an unpopular (1969) (internal quotation marks omitted). viewpoint” is not enough to justify the For this reason, (a) Stafford cannot simply suppression of speech. [9] Tinker v. Des ban all “controversial” speech but (b) there
is no merit to Stafford’s contention that if it distributes the literature of the Good [9] Schools may regulate private News Club, it will have to distribute the speech that occurs on school premises literature of virulent racist groups. has distributed and that seek to recruit religious perspective.” Rosenberger, 515 members. See JA 338, 346-47, 350, 352- U.S. at 832. The Court observed: 57.
It is, in a sense, something What Stafford appears to mean of an understatement to when it says that it excludes groups that speak of religious thought proselytize is that it rejects religiously and discussion as just a affiliated groups that attempt to recruit viewpoint, as distinct from a new members and persuade them to adopt comprehensive body of the group’s views. This is viewpoint thought. . . . We conclude, discrimination. nonetheless, that here, as in
Lamb’s Chapel , viewpoint (6) Finally, Stafford’s attempt to discrimination is the proper justify its actions on the ground that it w ay to interp ret th e excludes all speech on “religion as a University’s objections to subject or category of speech” flies in the Wide Awake. face of Supreme Court precedent. “[P]rivate religious speech, far from being Id. at 831. a First Amendment orphan, is as fully
Most recently, in Good News Club protected under the Free Speech Clause as v. Milford Cent. Sch., supra, the Supreme secular private expression.” Capitol Court rejected an argument that was Square Review & Advisory Bd. v. Pinette, virtually identical to the one that Stafford 515 U.S. 753, 760 (1995). Cases such as advances here. The school allowed its Lamb’s Chapel, Rosenberger, and Good facilities to be used for “instruction in any News Club establish that if government branch of education, learning or the arts” permits the discussion of a topic from a and for “social, civic and recreational secular perspective, it may not shut out meetings and entertainment events, and speech that discusses the same topic from other uses pertaining to the welfare of the a religious perspective. In Lamb’s Chapel, community,” provided that the events were a school district was held to have violated open to the general public. Good News the right of free speech by permitting Club, 533 U.S. at 102. The school refused, “school property to be used for the however, to permit the use of its facilities presentation of all views about family by a Good News Club, stating that “‘the issues and child rearing except those kinds of activities proposed to be engaged dealing with the subject matter from a in by the Good News Club were not a religious standpoint.” Lamb’s Chapel, 508 discussion of secular subjects such as child U.S. at 393. In Rosenberger, a free speech rearing, development of character and violation occurred because the university development of morals from a religious refused to support a student publication perspective, but were in fact the equivalent called Wide Awake “on the ground that the of religious instruction itself.’” Id. at 103- contents of Wide Awake reveal an avowed 04. The Second Circuit sustained this against Child Evangelism because it policy, holding that the Good News Club’s teaches “morals and character, from a activities fell “outside the bounds of pure religious standpoint,” Good News Club, ‘moral and character development’” 533 U.S. at 109, but it also appears that because they were “quintessentially Stafford disfavored Child Evangelism religious.” Good News Club v. Milford because of the particular religious views Cent. Sch., 202 F.3d 502, 510-11 (2000), that Child Evangelism espouses. Several rev’d 533 U.S. 98 (2001) of the groups that Stafford has allowed to
distribute and post materials – specifically Applying Lamb’s Chapel and the Boy Scouts, the Girl Scouts, and the Rosenberger, the Supreme Court reversed Elks – espouse religious views and require and held that the school had engaged in or encourage members to endorse these impermissible viewpoint discrimination. beliefs. The Court pointed out that the Good News Club sought “to address a subject The Boy Scouts describes itself as otherwise permitted under [the school’s “an organization with strong religious rules], the teaching of morals and tenets.” JA 514. The stated mission of character, from a religious standpoint,” the Boy Scouts is to “prepare young people Lamb’s Chapel, 533 U.S. at 109, and the to make ethical and moral choices over Court rejected the Second Circuit’s their lifetimes by instilling in them the position that “something that is values of the Scout Oath and Law.” JA ‘quintessentially religious’ or ‘decidedly 516. The well-known Boy Scout Oath religious in nature’ cannot also be begins with the words “On my honor I will characterized properly as the teaching of do my best / To do my duty to God and my morals and character development from a country.” JA 517. In describing this particular viewpoint.” Id. at 111. The portion of the Oath, official Boy Scout Court elaborated: “What matters for literature states: “Our nation is founded on purposes of the Free Speech Clause is that showing reverence to a higher faith. In we can see no logical difference in kind these words, the Scout promises to between the invocation of Christianity by recognize, to honor and to respect his the Club and the invocation of teamwork, religious faith. And in the Boy Scouts of loyalty, or patriotism by other associations America, he is given an opportunity to to provide a foundation for their lessons.” grow in that faith and to respect the beliefs Id. This holding forecloses Stafford’s of others.” Id. And though the Boy argument that its disparate treatment of Scouts of America is a nonsectarian group, Child Evangelism was not viewpoint it still “maintains that no child can develop discrimination. to his or her fullest potential without a
spiritual element in his or her life.” Id.
B.
The Girl Scout Promise includes a Not only did Stafford discriminate commitment to “serve God.” JA 524. The group takes the view that God can be The Supreme Court has not settled “interpreted in a number of ways” and the question whether a concern about a permits the word “God” in the Promise to possible Establishment Clause violation be replaced by “whatever word [a girl’s] can justify viewpoint discrimination. See spiritual beliefs dictate.” Id. The Good News Club, 533 U.S. at 112-13 Benevolent and Protective Order of Elks (“[While] [w]e have said that a state of the United States of America requires interest in avoiding an Establishment its members to “believe in God.” Id. at Clause violation ‘may be characterized as 528. compelling,’ and therefore may justify
content-based discrimination . . . , it is not In discovery, Stafford propounded clear whether a State’s interest in avoiding an extraordinary set of requests for an Establishment Clause violation would admissions that sought to elicit Child justify viewp oin t disc rimi natio n.”) Evangelism’s admission that it adheres to (internal citation omitted) (quoting a variety of traditional Christian doctrines. Widmar v. Vincent, 454 U.S. 263, 271 See JA 369. Stafford’s brief highlighted (1981)). But we need not decide this issue these beliefs as grounds for its actions, see here, because giving Child Evangelism Appellant’s Br. at 10, and at argument equal access to the fora at issue would not Stafford’s counsel stated: “We were violate the Establishment Clause. The concerned that, what the Child Evangelism Supreme Court has repeatedly “rejected Fellow ship teaches appears to be the position that the Establishment Clause inconsistent with what we’re obligated to even justifies, much less requires, a refusal teach, that being diversity and tolerance.” to extend free speech rights to religious Oral Arg. Tr. at 10. Suppressing speech speakers who participate in broad-reaching on this ground is indisputably viewpoint- government programs neutral in design.” based. Rosenberger, 515 U.S. at 839. VI. B. A. Contrary to the arguments of Stafford argues that even if it Stafford and its amici, equal access would engaged in viewpoint discrimination, its not result in an impermissible endorsement conduct was justified for the purpose of of religion. An unconstitutional avoiding a violation of the Establishment endorsement of religion is said to occur Clause. Similar arguments were rejected when government makes “adherence to a in Lamb’s Chapel, 508 U.S. at 394-97, religion relevant in any way to a person’s Rosenberger, 515 U.S. at 845-46, and standing in the political community.’” Good News Club, 533 U.S. at 112-120, Allegheny County v. Greater Pittsburgh and Stafford’s rendition here is no more ACLU, 492 U.S. 573, 625 (1989) convincing. (O’Connor, J., concurring) (quoting Lynch
v. Donnelly, 465 U.S. 668, 687 (1984) ( O ’ C o n n o r , J . , c o n c u r r i n g ) ) . possible message of official endorsement “‘Endorsement sends a message to of or preference for religion or a particular nonadherents that they are outsiders, not religious belief.” Id. Official recognition full members of the political community, of the club “carrie[d] with it access to the and an accompanying message to school newspaper, bulletin boards, the adherents that they are insiders, favored public address system, and the annual Club members of the political community.’” Id. Fair,” id. at 247, fora very similar to those “Disapproval of religion conveys the at issue in the present case. opposite message.” Id.
In Lamb’s Chapel, the Court ruled In order to determine whether a that allowing a film with a religious challenged practice “‘constitutes an message to be shown on school premises endorsement or disapproval of religion,’” after school hours in a gathering that was the practice must be “‘judged in its unique sponsored by a private group and open to circumstances.” Allegheny County, 492 the public would not have created any U.S. at 624-25 (O’Connor, J., concurring) “realistic danger that the community would (quoting Lynch, 465 U.S. at 694 think that the District was endorsing (O’Connor, J., concurring)) (emphasis in religion or any particular creed.” 508 U.S. Allegheny). In addition, the challenged at 395. And in Good News Club, 533 U.S. practice must be considered from the at 118, the Court concluded that even perspective of a hypothetical reasonable small children would not perceive that observer who is “aware of the history and allowing the Good News Club, like other context of the community and forum.” community groups, to meet on school Capitol Square Review & Advisory Bd. v. premises represented an endorsement by Pinette, 515 U.S. 753, 780 (1995) the school of the group’s beliefs. The (O’Connor, J., concurring in part and Court added: “[E]ven if we were to inquire concurring in judgment). into the minds of schoolchildren in this
case, we cannot say the danger that The Supreme Court has repeatedly c h i l d re n wo uld m isperc eive th e held that granting equal access to facilities endorsement of religion is any greater than in educational institutions does not offend the danger that they would perceive a this principle. In Bd. of Educ. of the hostility toward the religious viewpoint if Westside Cmty. Schs. v. Mergens, 496 the Club were excluded from the public U.S. 226, 252 (1990), the Court found that forum.” Id. a public school’s recognition of a religious student club would not be perceived as Applying these precedents, we see endorsement where the school recognized no endorsement problem here. Child a “broad spectrum” of clubs and allowed Evangelism’s flyers specifically disclaim its students to “initiate and organize any school sponsorship. In addition, a additional student clubs.” These features, reasonable observer, “aware of the history the Court held, “counteract[ed] any and context of the community and forum,” Pinette, 515 U.S. at 780, would know that the Club were excluded from the public Stafford has a policy of assisting a broad forum.” Good News Club, 533 U.S. at range of community groups, that Stafford 118. The Court elaborated: plays no role in composing the flyers that
We cannot operate . . . under are sent home and does not pay for them, the assumption that any risk and that Stafford teachers do not discuss that small children would the flyers in class. If permitting Good p e r c e iv e e n d o r s e m e n t News Club meetings on school premises should counsel in favor of shortly after the end of the school day does e x c l u d in g t h e C l u b ’s not convey a message of endorsement, the religious activity. We lesser activities at issue here cannot be d e c l i n e t o e m p l o y viewed as bearing the school’s implicit E s ta b li sh m e n t C l a u s e approval. jurisprudenc e using a Stafford and its amici contend that modified heckler’s veto, in the relevant reasonable observer in this which a group’s religious case is an elementary school child and that activity can be proscribed on such a child is likely to interpret school the basis of what the facilitation of private speech as amounting youngest members of the to an endorsement of the speech. Indeed, audience might misperceive. they contend that elementary school . . . The re are children are incapable of understanding the countervailing constitutional difference between school-sponsored concerns related to rights of extracurricular activities and privately run other individuals in the activities that the school assists in community. In this case, publicizing. However, Good News Club t h o s e c o u n t e r v a i l i n g and decisions of other courts of appeals concerns are the free speech undermine that argument. rights of the Club and its
members. In Good News Club, it was argued that young children would interpret the use Id. at 518-19. of the school building for club meetings as
Heeding these comments, recent signifying that the meetings were endorsed court of appeals decisions have rejected by the school. In response, the Court arguments essentially the same as stated that “even if we were to inquire into Stafford’s here. In Hills v. Scottsdale the minds of the schoolchildren in this Unified Sch. Dist., 329 F.3d 1044 (9th Cir. case, we cannot say the danger that 2003), a school district had a policy of c h i l d re n wo uld m isperc eiv e th e distributing community-group literature endorsement of religion is any greater than but refused to hand out the brochures for a the danger that they would perceive a summer camp that offered classes on hostility toward the religious viewpoint if “Bible Heroes” and “Bible Tales.” Id. at students were the relevant audience, their 1046. Holding that the school district had youth would not alter the outcome.” Id. at engaged in viewpoint discrimination and 3. that handing out information about the
In Child Evangelism Fellowship of camp would not have violated the Md., Inc. v. Montgomery County Pub. Establishment Clause, the panel rejected Sch., 373 F.3d 589 (4th Cir. 2004), the the school district’s argument that “the Child Evangelism Fellowship of Maryland impressionability of elementary-age applied for a preliminary injunction students mandate[d] the exclusion of such requiring Montgomery County elementary material.” Id. at 1053. Among other schools to send home Good News Club things, the panel noted that the brochures’ flyers just as they sent home the flyers of disclaimer of school sponsorship lessened other non-profit community groups. Id. at any danger that distribution would be 591. Reversing the denial of the perceived as endorsement, and the panel application, the Fourth Circuit saw “no thought it of little significance that in some meaningful way to distinguish [the] case schools the teachers handed the brochures from controlling precedents.” Id. at 602. directly to students and that distribution The district maintained that allowing the sometimes occurred “at the end of the day” Good News Club flyers to be sent home and “thus technically during school hours.” would violate the Establishment Clause in Id. at 1054. See also Prince v. Jacoby, 303 light of “the age of the students,” but the F.3d 1074 (9th Cir. 2002) (requiring that a Fourth Circuit viewed this argument as school club be given equal access to, inconsistent with Good News Club. Id. among other things, the yearbook, public address systems, and bulletin boards). Even before Good News Club was
decided, the Seventh Circuit held in In Rusk v. Crestview Local Sch. Sherman v. Cmty. Consol. Sch. Dist., 8 Dist., No. 02-3991, 2004 WL 1793283 F.3d 1160 (7th Cir. 1993), that a grade (6th Cir. Aug. 12, 2004), an elementary school did not violate the Establishment school had the practice of placing in Clause by distributing Boy Scout literature students’ scho ol ma ilboxes flyers and allowing Boy Scout posters to be hung advertising the activities of many on the school walls. The school’s policy community groups, including flyers was challenged by a boy and father whose advertising religious activities. Holding membership in the group had been revoked that this practice did not violate the because they refused to accept the Establishment Clause, the Sixth Circuit provision of the Scout Oath requiring a concluded that because the students could belief in God. Id. at 1162-63. They not participate in any of the activities argued that the school violated the without parental approval, “the relevant Establishment Clause “by endorsing the observers are the parents,” id. at 2, not the religious message” of the Boy Scouts, but students and added that “even if the . . . the Seventh Circuit disagreed and rejected the plaintiffs’ contention “that the age of We agree with these decisions and the children involved tip[ped] the balance hold that granting Child Evangelism equal in their favor.” Id. at 1166. [10] access to the fora in question would not
have constituted an endorsement of religion. “The proposition that schools do not endorse everything they fail to censor [10] Our decision here and the Fourth, is not complicated,” Mergens, 496 U.S. at Sixth, and Seventh Circuit decisions 250 (plurality), but if Stafford is discussed above appear to differ from a portion of the Ninth Circuit’s decision in Culbertson v. Oakridge School District No. 76, 258 F.3d 1061 (9th Cir. 2001), but Culbertson’s reach. Holding, as noted we find that portion of Culbertson above, that a school district with a broad unpersuasive. policy of distributing community group
In Culbertson, a Ninth Circuit panel literature could not exclude a brochure for held that an elementary school that opened a camp with Bible classes, the panel its doors to after-school use of its facilities distinguished Culbertson on the following by a variety of community youth groups grounds: the camp in Hills did not meet on was required to grant similar access to a school grounds; Culbertson held only that Good News Club. The panel concluded, the club’s permission slips, not its however, that the school’s distribution of brochures, could not be handed out; and Good News Club permission slips would the camp brochure in Hills (apparently violate the Establishment Clause. The unlike the permission slips in Culbertson) panel stated: “Not just an empty classroom contained an express disclaimer of school but a teacher’s nod of encouragement is sponsorship. Hills, 329 F.3d at 1054. thereby afforded the club’s religious We agree that the presence or program.” Id. at 1065. absence of a disclaimer of school
We find this analysis unconvincing. sponsorship is a meaningful (although not The Culbertson panel did not explain why necessarily dispositive) factor, but we see the simple act of handing out permission little relevance in the distinction between slips – presumably in the same manner as a brochure for an extracurricular activity other community-group literature – and a permission slip for the same activity. amounted to “a nod of encouragement”, We also do not see how Culbertson’s nor did the panel explain why permitting a holding on the permission slips could have group to conduct meetings on school turned on the fact that the club meetings premises is less likely to be interpreted as were to be held on school grounds. After “a nod of encouragement.” If anything, all, Culbertson, following Good News the opposite seems likely. Club, held that the school was obligated to
Furthermore, the Ninth Circuit’s allow the club to meet on school grounds. more recent decision in Hills v. Scottsdale Unified School District, supra, limits legitimately worried about possible distributed and posted in the schools and misunderstandings there are obvious steps by allowing these groups to be represented that it can take. Stafford can send home an at Back-to-School nights, Stafford helps to announcement to parents setting out its inform families about the wide spectrum broad-ranging policies and making clear of activities from which they may choose that it does not necessarily endorse all the and to foster the growth of diverse groups whose materials are distributed or community groups. These are indisputably posted. Stafford teachers can explain the legitimate secular purposes. point to students.
Granting equal access would not C. have the principal or primary effect of advancing religion. Rather, the principal Giving Child Evangelism equal and primary effect would be to inform access to the fora in question also would school families about available community not offend the “Lemon test.” See Lemon activities and to foster a wide range of v. Kurtzman, 403 U.S. 602 (1971). Under activities in the community. While some Lemon, there is no Establishment Clause religious groups would benefit from equal violation if the challenged law or practice access, so would a great many secular (1) has “a secular purpose,” (2) “its groups. “The provision of benefits to so principal or primary effect” “neither broad a spectrum of groups is an important advances nor inhibits religion,” and (3) it index of secular effect.” Widmar, 454 does not “foster an excessive government U.S. at 274. “[A] religious organization’s entanglement with religion.” Lemon, 403 enjoyment of merely ‘incidental’ benefits U.S. at 612-13. In Agostini v. Felton, 521 does not violate the prohibition against the U.S. 203, 233-34 (1997), the Court ‘primary advancement’ of religion.” Id. at clarified the third prong of this test, 273. concluding that it is best understood “as an aspect of the inquiry into a statute’s Finally, granting equal access to the effect.” See Tenafly, 309 F.3d at 174 n.36. three fora would not resu lt in
unconstitutional entanglement. An The Lemon test is satisfied in this entanglement must be “‘excessive’ before case. First, granting equal access to the it runs afoul of the Establishment Clause,” three fora has a secular purpose. and this requires more than mere Stafford’s stated goal is to “assist all “[i]nteraction between church and state,” organizations in our rapidly growing for some level of interaction has always community.” JA 190. Stafford appears to been “tolerated.” Agostini v. Felton, 521 take the view that the community and its U.S. at 233. As the Supreme Court children are enriched by the opportunity to explained in Agostini, the factors participate in a variety of privately run employed “to assess whether an activities. By permitting a broad range of entanglement is ‘excessive’ are similar to community groups to have their flyers the factors . . . use[d] to examine ‘effect.’” Id. at 232. Thus, we must look to “the part of a commencement program. The character and purposes of the institutions Court reasoned that the importance of that are benefited, the nature of the aid that commencement in a student’s life puts the State provides, and the resulting pressure on students to attend, that those relationship between the government and attending would feel social pressure to religious authority.” Id. (quoting Lemon, stand in silence during the invocation, and 403 U.S. at 615.) that this act would be viewed by some
objectors as amounting to participation in Here, granting equal access would or approval of the prayer. See id. at 586, not result in excessive entanglement. As 593, 595-96. we have explained, the principal and primary effects of granting equal access In Santa Fe Indep. Sch. Dist. v. would be secular, and allowing equal Doe, supra, the Court held that an access would produce little additional invocation held before a high school interaction between Child Evangelism and football game likewise exerted improper Stafford. Child Evangelism would simply pressure on students to participate in a send its flyers and permission slips to the religious ceremony to which they objected. schools and, space permitting, send a The Court noted that some students (team representative to Back-to-School nights. and band members and cheerleaders) were Stafford in turn would merely perform the required to attend and that others felt peer largely ministerial tasks needed to or social pressure to do so. Santa Fe, 530 distribute and post the materials and U.S. at 311-12. (again, space permitting) accommodate a
The distribution and posting of Child Evangelism representative at Back- Good News Club flyers and posters and to-School nights. If there is no excessive the presence of a Child Evangelism entanglement when a public school allows representative at Back-to-School nights a Good News Club to meet on school would not result in any similar pressure to premises during after-school hours, see participate in a religious activity. Students Good News Club, 533 U.S. 98, there would receive Good News Club flyers and certainly would be no exce ssive permission slips, just as they have long entanglement here. received materials from a variety of other D. community groups. Receiving these materials would not pressure students to Nor would granting equal access attend Good News Club meetings, and “coerce anyone to support or participate in indeed they could not attend those religion or its exercise.” Lee v. Weisman, meetings without their parents’ written 505 U.S. 577, 587 (1992). In Lee, the permission. Students w ould also Court held that a school engaged in occasionally see Good News Club improper coercion by including an materials, along with information about invocation led by a member of a clergy as other groups, on school walls, but this likewise would not pressure students to attend the meetings. Parents would see the Good News Club flyers and permission slips when (and if) their children bring them home, but they would not be pressured into reading those documents any more than they are pressured into reading other unsolicited mail, and receiving those materials would certainly not pressure parents into allowing their children to attend. In short, nothing even remotely approaching coercion is present in this case.
VI.
In sum, we hold, based on undisputed facts in the record and well established Supreme Court precedent, that Stafford has clearly engaged in a practice of viewpoint discrimination that cannot be justified as an effort to avoid an Establishment Clause violation. We therefore affirm the order of the District Court and remand for the entry of permanent injunctive relief and such other relief as may be appropriate.
NOTES
[1] “JA” denotes the Joint Appendix.
[5] T h e d o c u m e n t
[6] Stafford describes the process in e n t i t l e d “Distribution of Materials by Pupils and this manner: “Generally, the process Staff” first states that approval may be involves the task of receiving the bundles, given by “the superintendent/designee,” placing them in the mailboxes, having but three sentences later the document says them removed from the mailboxes by the that “[n]o staff member may distribute any teachers, carrying the bundles to their materials on school property without prior respective rooms and actually distributing approval of the superintendent.” JA 189. the flyers to the children.” Id.
[8] Stafford’s policy that all materials by the forum,’ . . . nor may it discriminate be reviewed and approved in advance does against speech on the basis of its not render the fora non-public. See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 554-55 (1976); Widmar v. Vincent, 454 U.S. at 268-69.
