Untitled California Attorney General Opinion ( 1992 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 92-518
of :
: OCTOBER 8, 1992
DANIEL E. LUNGREN :
Attorney General :
:
CLAYTON P. ROCHE :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE MARIAN BERGESON, MEMBER OF THE CALIFORNIA
SENATE, has requested an opinion on the following question:
With respect to a public school building designated as a polling place by the county
clerk, may a school district board prohibit election campaigning on election day by members of the
public on the school's property beyond 100 feet of the polling place?
CONCLUSION
With respect to a public school building designated as a polling place by the county
clerk, a school district board may prohibit election campaigning on election day by members of the
public on the school's property beyond 100 feet of the polling place except for an area constituting
a public forum under the Civic Center Act. The board may subject the latter area to reasonable time,
place, and manner restrictions to protect the school's educational programs.
ANALYSIS
Elections Code section 1504 provides that when "a city or county clerk specifically
requests the use of a school building for polling places on an election day, the governing body
having jurisdiction over the particular school building shall allow its use for the purpose requested."
Elections Code section 29470 prohibits electioneering or the solicitation of votes on election day
within 100 feet of any polling place. It states:
"No person, on election day, shall, within 100 feet of a polling place:
"(a) Circulate an initiative, referendum, recall, or nomination petition or
any other petition.
"(b) Solicit a vote or speak to a voter on the subject of marking his ballot.
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"(c) Place a sign relating to voters' qualifications or speak to a voter on the
subject of his qualifications except as provided in Section 14216.
"(d) Do any electioneering.
"As used in this section ``100 feet of a polling place' shall mean a distance 100
feet from the room or rooms in which voters are signing the roster and casting
ballots.
"Any person who violates any of the provisions of this section is guilty of a
misdemeanor." 1
We are asked herein to determine whether a school district board may extend the 100
feet limitation of Elections Code section 29470 to all of the school's property so as to prevent
election campaigning by members of the public on election day. We conclude that it generally may.
Education Code section 7055 2 provides:
"The governing body of each local agency may establish rules and
regulations on the following:
"(a) Officers and employees engaging in political activity during working
hours.
"(b) Political activities on the premises of the local agency."
In analyzing the scope of section 7055 in light of other relevant authorities, we will proceed with
various assumptions in mind. First, the election campaigning is restricted to members of the general
public. Accordingly, we need not address the scope of the constitutional freedom of expression held
by students or school personnel. (Compare Tinker v. Des Moines Independent Community School
Dist. (1969) 393 U.S. 503 [school authorities may not prohibit a student from wearing a black arm-
band to protest war] with Hazelwood School District v. Kuhlmeier (1987) 484 U.S. 260 [school
authorities may excise articles from a school newspaper which they reasonably conclude are not
suitable for such publication].) Nor need we direct our analysis to the Federal Equal Access Act (20
U.S.C. §§ 4071-4074) which prohibits a school receiving federal funds from denying equal access
to student organizations meeting on campus for purposes not directly related to the school's
curriculum.3
1
A similar 100 feet limitation was recently held to be constitutional in Burson v. Freeman (1992)
504 U.S.__ [119 L.Ed.2d 5].
2
All references hereafter to the Education Code are by section number only.
3
This federal legislation provides in part:
"It shall be unlawful for any public secondary school which receives Federal
financial assistance and which has a limited open forum to deny equal access or fair
opportunity to, or discriminate against, any students who wish to conduct a meeting within
that limited open forum on the basis of the religious, political, philosophical, or other
content of the speech at such meetings." (20 U.S.C. §4071(a).)
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Second, although section 7055 is placed in the article of the Education Code entitled
"Political Activities of School Officers and Employees," its wording is sufficient to encompass any
political activities on school property. Third, section 29470 of the Elections Code is solely a
prohibition. It is not an affirmative authorization to perform the prohibited acts outside the 100 feet
perimeter. In short, the statute is silent concerning what is to occur beyond 100 feet of a polling
place and thus is not in conflict with section 7055 or any other provision of law. (See In re Iverson
(1926) 199 Cal. 582, 586-587.) Fourth, other statutory laws (e.g., trespass laws applicable to school
property) are subject to the exercise of a person's constitutional rights, including that of free speech,
on school property. (See Cal. Const., art. 1, § 28, subd. (c); §§ 32210, 32211, 44811; Pen. Code, §§
626-626.10, 627.2, 653g.)
With these preliminary considerations in mind, we examine the question presented
in the context of the constitutional right of freedom of expression. The First Amendment of the
United States Constitution provides:
"Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble, and to petition the
government for a redress of grievances."
Subdivision (a) of section 2 of article I of the California Constitution states:
"Every person may freely speak, write and publish his or her sentiments on
all subjects, being responsible for the abuse of this right. A law may not restrain or
abridge liberty of speech or press."
California courts have construed the California Constitution as being more protective of First
Amendment rights than the federal Constitution. (Spiritual Psychic Science Church v. City of Azusa
(1985) 39 Cal.3d 501, 519; Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 903, 907-
910; Wilson v. Superior Court (1975) 13 Cal.3d 652, 658; Women's Internat. League Etc. Freedom
v. City of Fresno (1986) 186 Cal.App.3d 30, 37-38.)
1. Federal Constitutional Considerations
The basic issue for resolution herein is what rights the public may have to exercise
political speech on a specific type of public property, that is, school property. In Perry Ed. Assn.
v. Perry Local Educator's Assn. (1983) 460 U.S. 37, 45-46, the United States Supreme Court set
forth the following rules regarding the right of free speech on public property:
"In places which by long tradition or by government fiat have been devoted
to assembly and debate, the rights of the State to limit expressive activity are sharply
circumscribed. At one end of the spectrum are streets and parks which ``have
immemorially been held in trust for the use of the public and, time out of mind, have
been used for purposes of assembly, communicating thoughts between citizens, and
discussing public questions.' [Citation.] In these quintessential public forums, the
government may not prohibit all communicative activity. For the State to enforce
a content-based exclusion it must show that its interest is necessary to serve a
compelling state interest and that it is narrowly drawn to achieve that end. [Citation.]
The State may also enforce regulations of the time, place and manner of expression
which are content-neutral, are narrowly tailored to serve a significant government
interest, and leave open ample alternative channels of communication. [Citations.]
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"A second category consists of public property which the State has opened
for use by the public as a place for expressive activity. The Constitution forbids a
State to enforce certain exclusions from a forum generally open to the public even
if it was not required to create the forum in the first place. [Citations.] Although a
State is not required to indefinitely retain the open character of the facility, as long
as it does so it is bound by the same standards as apply in a traditional public forum.
Reasonable time, place, and manner regulations are permissible, and a content-based
prohibition must be narrowly drawn to effectuate a compelling state interest.
[Citation.]
"Public property which is not by tradition or designation a forum for public
communication is governed by different standards. We have recognized that the
``First Amendment does not guarantee access to property simply because it is owned
or controlled by the government.' [Citation.] In addition to time, place, and manner
regulations, the State may reserve the forum for its intended purposes,
communicative or otherwise, as long as the regulation on speech is reasonable and
not an effort to suppress expression merely because public officials oppose the
speaker's view. [Citation.] As we have stated on several occasions, ``"[t]he State, no
less than a private owner of property, has power to preserve the property under its
control for the use of which it is lawfully dedicated."' [Citations.]"
As to public school property specifically, the United States Supreme Court set forth
the following guidelines in Hazelwood School District v. Kuhlmeier, supra, 484 U.S. at 267:
". . . The public schools do not possess all of the attributes of streets, parks,
and other traditional public forums that ``time out of mind, have been used for
purposes of assembly, communicating thoughts between citizens, and discussing
public questions.' [Citations.] Hence, school facilities may be deemed to be public
forums only if school authorities have ``by policy or by practice' opened those
facilities ``for indiscriminate use by the general public,' [citation] or by some segment
of the public, such as student organizations. [Citation.] If the facilities have instead
been reserved for other intended purposes, ``communicative or otherwise,' then no
public forum has been created, and school officials may impose reasonable
restrictions on the speech of students, teachers, and other members of the school
community. [Citation.] ``The government does not create a public forum by inaction
or by permitting limited discourse, but only by intentionally opening a nontraditional
forum for public discourse.' [Citation.]"
In California, public school property may be placed under Perry's third category,
except for a public forum area designated at each school which is subject to Perry's second category
limitations as express in Hazelwood. The Civic Center Act (§§ 40040-40048) requires school
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district boards to make available a "civic center" at each school for use by any group for virtually
any legitimate purpose, including "political" activities. Section 40041 provides:
"(a) There is a civic center at each and every public school facility and
grounds within the state where the citizens, parent-teachers' associations, camp fire
girls, boy scout troops, farmers' organizations, school-community advisory councils,
senior citizens' organizations, clubs, and associations formed for recreational,
educational, political, economic, artistic, or moral activities of the public school
districts may engage in supervised recreational activities, and where they may meet
and discuss, from time to time, as they may desire, any subjects and questions which
in their judgment pertain to the educational, political, economic, artistic, and moral
interests of the citizens of the communities in which they reside.
"(b) The government board of any school district may grant the use of school
facilities or grounds as a civic center upon the terms and conditions the board deems
proper, subject to the limitations, requirements, and restrictions set forth in this
article . . . ."
While a school district board must designate a civic center area at each school
(Danskin v. San Diego Unified Sch. Dist. (1946) 28 Cal.2d, 536, 540; Goodman v. Board of
Education (1941) 48 Cal.App.2d 731, 734-738), the public use of such an area may "not interfere
with the school program" (American Civil Liberties Union v. Board of Education (1963) 59
Cal.App.2d 203, 208; 52 Ops.Cal.Atty.Gen. 220, 222 (1969)). As explained by the Supreme Court
in Danskin v. San Diego Unified Sch. Dist., supra, 28 Cal.2d at 550:
"The state can of course safeguard the primary purposes of public property
from interference by other uses that it permits. Under the Civic Center Act ``the
educational activities of schools shall at all times take precedence over other
permissive but secondary uses of school buildings' and a school board must ``consider
the probable effect of the proposed use on the regular school program and must deny
one that would lead to an interference with that program.' (Payroll Guaranty
Association v. Board of Education, 27 Cal.2d 197, 203.) . . . ."
Under the federal Constitution, then, with respect to the area of a school's property
designated as a public forum under the Civic Center Act, the school board may only "enforce
regulations of the time, place and manner of expression which are content neutral, are narrowly
tailored to serve a significant government interest, and leave open ample alternative channels of
communication." (Perry Ed. Assn. v. Perry Local Educator's Assn., supra, 460 U.S. 37, 45.)4 The
"significant government interest" here would be the protection of the school's educational programs.
The "non-forum" remainder of the school's property beyond the 100 feet perimeter of Elections Code
section 29470 would be subject to a total ban on election campaigning.
4
In so concluding, we realize that the Legislature has authorized members of the public other
than those voting to be present at a polling place to challenge voters (Elec. Code, § 14216) and to
examine the duplicate voters list which must be checked off periodically by precinct workers (Elec.
Code, §§ 14251, 14252). However, in our view, these statutory provisions relate to election
procedures, not expressive activity.
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2. California Constitutional Considerations
As noted at the outset, California courts have construed the California Constitution
as being more protective of a person's right of expression than the federal Constitution. An
examination of recent California cases, however, discloses that California courts have adopted the
general "public forum" concepts enunciated in Perry as an analytical framework. (See Sands v.
Morongo Unified School Dist. (1991) 53 Cal.3d 863, 912, fn. 4; Chino Feminist Women's Health
Center v. Scully (1989) 208 Cal.App.3d 230, 243-248.)
Accordingly, the analysis and result should be the same under both the United States
and California Constitutions. In short, school boards retain the discretion under the Civic Center
Act to utilize school buildings and property for their intended purpose, that is, education. A school
board may adopt reasonable time, place, and manner restrictions upon any public forum area to
prevent interference with this primary purpose. As for the "non-forum" remainder of a school's
property beyond 100 feet of the polling place, the board may prohibit all election campaigning by
members of the public.
In answer to the question presented, therefore, we conclude that with respect to a
public school building designated as a polling place by the county clerk, the school district board
may prohibit election campaigning on election day by members of the public on all of the school's
property beyond 100 feet of the polling place except for an area constituting a public forum under
the Civic Center Act. The board may subject the latter area to reasonable time, place, and manner
restrictions to protect the school's educational programs.
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