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BACON v. BRADLEY-BOURBONNAIS H.S. D. 307

February 10, 1989

DONALD D. BACON, PLAINTIFF,
v.
BRADLEY-BOURBONNAIS HIGH SCHOOL DISTRICT NO. 307, DEFENDANTS.



The opinion of the court was delivered by: Baker, Chief Judge.

ORDER

The plaintiff, Donald Bacon, seeks equitable, declaratory, and compensatory relief against the defendant, Bradley-Bourbonnais High School District No. 307. The plaintiff claims that the defendant, acting under color of state law, in violation of the provisions of 42 U.S.C. § 1983, deprived Bacon of his constitutional rights under the First and Fourteenth Amendments. Bacon says that the defendant prohibited him from distributing Gideon Bibles on the public sidewalk in front of the high school in Bradley, Illinois.*fn1 Specifically, Bacon claims that the defendant violated his rights to freedom of speech and assembly under the First and Fourteenth Amendments and his right to equal protection under the Fourteenth Amendment.*fn2 Bacon seeks a judgment declaring District 307's conduct unconstitutional and enjoining the District from preventing his distribution of Bibles on the sidewalk in front of the high school in Bradley. Bacon also prays for compensatory damages, costs, and attorneys fees.*fn3

On November 9, 1988, the court held a hearing on the plaintiff's and the defendant's cross-motions for summary judgment. During the hearing, both parties indicated that they had no additional evidence to adduce and that the court should decide the case on the record that had been presented. Under Fed.R.Civ.P. 39(b), issues not demanded for trial by jury shall be tried by the court. The record shows that neither party demanded a jury trial but asked the court to resolve the issues. Transcript, Nov. 9, 1988, pp. 28-31. Pursuant to Fed.R.Civ.P. 39(b), therefore, the court makes the following findings of fact and conclusions of law.

BACKGROUND

Bacon and others first tried to distribute Bibles in front of the high school in Bradley in May, 1985. On that occasion District 307 Superintendent Donald Turner told Bacon and about five to seven other people who had started to distribute Bibles that they would have to leave the sidewalk in front of the high school. The Bible distributors then moved to the other side of the street where they were effectively unable to distribute the Bibles to the high school students who remained on the sidewalk in front of the high school.

During the week of May 4, 1987, Bacon met with Turner and told him that Bacon intended to distribute Bibles to persons using the sidewalk in front of the high school. Turner told Bacon that such distribution would be illegal.

Bacon subsequently received two letters from the attorney for District 307. The first of those letters, dated May 26, 1987, stated, among other things, that the sidewalk in front of the high school was not a public forum and that distributing Bibles would violate state law.*fn4 The first letter also said that law enforcement authorities would be requested to enforce the State law if the plaintiff undertook Bible distribution as he said he planned. The second letter from the District 307 attorney, dated July 24, 1987, stated that the school district would not change its policy and that distributing Bibles on the sidewalk in front of the high school would not be permitted. In response, Bacon filed this suit.

The depositions and affidavits on file, the video tape of the sidewalk and the front of the high school in Bradley, Defendants' Exhibit C, and the transcript of the statements by counsel on November 9, 1988, establish that the front of the high school and the main entrance and exit of the building face south. The video tape shows North Street running along the south side of the high school. Grand Avenue is to the east of the main entrance. The sidewalk connects with a walkway that goes to the main entrance of the high school which consists of steps and pillars leading to entry doors. The sidewalk is four to six feet in width and runs east and west in front of the school. The sidewalk is located between the school building and North Street and abuts North Street. North Street, the video tape shows, is a four-lane street with a fifth or parking lane in front of the school. The sidewalk passing in front of the school connects with the sidewalks maintained by the Village of Bradley at the east and west ends of the school property. It is uncontested that Bacon indicated he wanted to stand on the sidewalk between the curb and the steps leading up into the high school and pass out Bibles to whomever would accept them. It is also uncontested that the school district allows teachers to picket on that sidewalk and hand out leaflets.

FIRST AMENDMENT CLAIMS

District 307 offers several arguments to support its refusal to allow Bacon to distribute Bibles on the sidewalk in front of the school. First, District 307 argues that the sidewalk in question, which is school owned, is not a public forum. Because the sidewalk is a non-public forum, the defendant argues, the policy of the school district not to allow distribution of any materials in front of the high school may be distinguished from the government's attempt to restrict all communicative activity in a public forum. District 307 contends that the function of this secular, secondary school is to provide a secondary education to minor children and that any area "on school grounds," which includes the sidewalk, should not be considered a public forum. As public property not intended to be a forum for public expression of ideas and opinions, therefore, the sidewalk in front of the school is not to be opened to the public for any type of free speech or expressive activities.

While school grounds are generally not considered to be public fora, see May v. Evansville-Vanderburgh School Corp., 787 F.2d 1105, 1114 (7th Cir. 1986) and school administrators are given "broad discretion in supervising the visitation of the school environment by persons not associated with the school," Texas State Teachers Association v. Garland Independent School District, 777 F.2d 1046, 1050-51 (5th Cir. 1985), aff'd, 479 U.S. 801, 107 S.Ct. 41, 93 L.Ed.2d 4 (1986), sidewalks are considered to be public fora. United States v. Belsky, 799 F.2d 1485, 1489 (11th Cir. 1986). Furthermore, the Supreme Court has noted that, in some cases, the sidewalk surrounding a public property may be considered a public forum even though the property itself is not a public forum. United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983).

The court finds that the sidewalk in front of the high school is a public sidewalk and is a public forum. Pedestrians walking along North Street, as well as students approaching or leaving the high school, use the sidewalk in front of the high school. Nothing alerts individuals using the sidewalk that they are entering school property and nothing is posted that restricts the public's use of the sidewalk. Anyone walking on the north side of North Street toward the Methodist Church from Grand Avenue must walk along the sidewalk outside the high school. It is nonsense to say that the sidewalk in front of the high school, considering its unrestricted use by pedestrians, is not a public way and therefore not a public forum.

It is well established that the government cannot prohibit all communicative activity in traditional public fora such as public streets and sidewalks. See Frisby v. Schultz, ___ U.S. ___, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988), citing Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37, 45, 103 S.Ct. 948, 954-55, 74 L.Ed.2d 794 (1983). Once an area has been determined to be a public forum, the question then becomes whether a regulation on expressive activity is a restriction which is reasonable in time, place, and manner.

The school district's policy, enforced by the Superintendent, is not to allow the distribution of any materials on the sidewalk in front of the high school. This policy has been enforced for the past twenty-five years. The ban on distributing materials is in effect twenty-four hours a day, seven days a week. In his testimony at the hearing, Superintendent Turner said the ban would cover boy scout masters ...


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