San Diego Committee Against Registration and the Draft (Card), Plaintiff v. The Governing Board of the Grossmont Union High School District

dissenting:

I first address a preliminary problem with the majority disposition. I believe the majority is far too generous in considering a document which does not purport to be a notice of appeal as complying with Fed.R. App.P. 4(a). I cannot distinguish Selph v. Council of the City of Los Angeles, 593 F.2d 881 (9th Cir.1979), from this case and, therefore, conclude we have no jurisdiction to hear this appeal.

If this were the only vice of the majority disposition, my separate opinion would be brief. But the majority has run afoul of Supreme Court precedent on a fundamental issue. Last Term, in Cornelius v. NAACP Legal Defense & Educational Fund, Inc., — U.S. -, 105 S.Ct. 3439 , 87 L.Ed.2d 567 (1985) (Cornelius), the Court presented its most thorough elaboration of the public forum doctrine. See id. at 3446-55 . Unfortunately, the majority misreads or disregards Cornelius and manufactures an analysis that is patently inconsistent with the analysis of the Court.

I

In Cornelius , the Court addressed a claim that the federal government violated the first amendment by excluding legal defense and political advocacy organizations from participation in the Combined Federal Campaign…

I. BACKGROUND

The San Diego Committee Against Registration and the Draft (CARD) appeals the district court’s denial of its request for a preliminary injunction enjoining the Governing Board of Grossmont Union High School District (the Board) from enforcing certain policies, rules and regulations, pursuant to which the Board has rejected an anti-draft advertisement submitted by CARD for placement in a number of the district’s student newspapers. 1

CARD is a non-profit organization located in San Diego County, California that is actively involved in counseling young men on alternatives to compulsory military service. CARD’S membership consists of both students and non-students. The Board is the governing body of the Grossmont Union School District and retains ultimate responsibility for the adoption and enforcement of policies, rules and regulations relating to administration of the district’s schools, including policies affecting the student newspapers.

In October, 1982, CARD sought to purchase advertising space from five student newspapers published by high schools within the district. According to CARD, its advertisement was directed toward providing information and counseling…

790 F.2d 1471 55 USLW 2007 , 32 Ed. Law Rep. 467 , 12 Media L. Rep. 2329 SAN DIEGO COMMITTEE AGAINST REGISTRATION AND THE DRAFT (CARD), Plaintiff- Appellant, v. The GOVERNING BOARD OF the GROSSMONT UNION HIGH SCHOOL DISTRICT, et al., Defendants-Appellees. No. 83-6070. United States Court of Appeals, Ninth Circuit. Submitted March 11, 1985. Decided June 6, 1986. Raphael Levens, San Diego, Cal., for plaintiff-appellant. Daniel A. Nordberg, Fiore & Nordberg, Newport Beach, Cal., for defendants-appellees. Appeal from the United States District Court for the Southern District of California. Before GOODWIN, WALLACE, and REINHARDT, Circuit Judges. REINHARDT, Circuit Judge: I. BACKGROUND 1 The San Diego Committee Against Registration and the Draft (CARD) appeals the district court's denial of its request for a preliminary injunction enjoining the Governing Board of Grossmont Union High School District (the Board) from enforcing certain policies, rules and regulations, pursuant to which the Board has rejected an anti-draft advertisement submitted by CARD for placement in a number of the district's student newspapers. 1 2 CARD is a non-profit organization located in San Diego County,…