Media for Perry Education Association v. Perry Local Educators' Association
Audio Transcription for Oral Argument - October 13, 1982 in Perry Education Association v. Perry Local Educators' Association
Robert H. Chanin:
Although the court below found that the school mail facilities are a nonpublic forum, it did not judge the constitutionality of the access policy by the standard that this Court has held applies to such forums.
It applied instead the public forum standard and concluded that the policy failed to pass constitutional muster under that standard.
It is our belief that the latter conclusion is wrong in its own right and that the access policy here in question is sustainable even under the more stringent standard.
But there is no occasion to reach that question in this case.
We submit that the dispositive flaw in the decision of the court below is its failure to use the proper standard to judge the constitutionality of this access policy to this nonpublic forum.
The Appellees appear to concede this.
They make no attempt to defend the analysis or approach taken by the court below.
To the contrary, they acknowledge the importance of the distinction between the standards governing access to public and nonpublic forums, and devote much of their argument to an effort to demonstrate that the school mail facilities are a public forum.
We submit this effort fails.
Under the relevant legal principles set forth by this Court, most recently last term in United States Postal Service v. Council of Greenburgh Civic Association, it is clear that the school mail facilities involved in this case are a nonpublic forum.
It is well established that certain government property is by its very nature a public forum: streets, parks, highways, and certain analogous facilities which historically have been used for purposes of public assembly and debate.
These, I think the reference would be traditional public forums.
Although it may sometimes be difficult to determine whether a particular facility is sufficiently analogous to a park or a street to be classed as a traditional public forum, again this question is of no concern here.
No one is suggesting that the school mail facilities are in any sense like the parks, like the streets, or like the highways.
It is conceded that they are not a traditional public forum.
But that of course is not the end of the matter.
Government may by its actions convert what otherwise would be a non-public forum into a public forum, and Appellees contend that that is what has happened here.
It is their position as we understand it that the school mail facilities have been converted into a public forum to which they have a constitutional right of access, and because of the existence of that right the access policy before the Court must be judged by the more stringent standard applicable to public forums.
The test to be used in determining whether such a conversion has taken place was also set forth in the Greenburgh case.
If the facilities have been preserved for the use to which they are lawfully dedicated or preserved for their normal and intended function, the property remains a nonpublic forum.
If on the other hand the facilities have been opened up for more general use, they may become a public forum for certain groups or for certain purposes.
To apply this test here, the threshold question is to identify the uses for which the school mail facilities are lawfully dedicated.
Warren E. Burger:
Speaking of threshold questions, counsel, at some point I hope you're going to address the jurisdiction question.
But you do it in your own time.
Robert H. Chanin:
Mr. Chief Justice, it was not my intention to address it in oral argument.
We believe that the point is clear and we have addressed it rather completely in our reply brief, and unless there are questions we're prepared to rely on the reply brief.
Phrased otherwise, the question we must look at it, what is the normal and intended function of these school mail facilities.
The Appellees point out that they are basically a communication medium and what they seek to do is communicate, and therefore they are within the normal and intended function.
We submit that is far too broad a formulation.
The function must be more narrowly defined if it is to have any meaning.