DiLoreto

Appellant Edward DiLoreto sued the superintendent of the Downey Unified School District , and two members of the Board of Education (collectively “the District”) based on the District’s refusal to post an advertisement, paid for by Mr. DiLoreto, on Downey High School’s baseball field fence. The advertisement contained the text of the Ten Commandments. Mr. DiLoreto contends that the District’s refusal to post the advertisement violated his right to free speech under the First Amendment to the United States Constitution. The District raises the defense that posting the sign would have violated the Establishment Clause of the First Amendment and that it feared disruption and controversy that the sign might precipitate. The District Court granted summary judgment to the District, and this appeal followed.

We affirm because we conclude that the baseball field fence was a forum limited to certain subjects and not open for indiscriminate use by the general public. See Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 267 , 108 S.Ct. 562 , 98 L.Ed.2d 592 (1988). We hold that the District could exclude subjects from the nonpublic forum that would be disruptive to the educational purpose…