Isn’t Political Issue, Court Says : Schools Ordered to Allow Anti-Draft Ads in Papers

High school newspapers that carry military recruiting advertisements also must sell advertising to groups opposed to the draft, a federal Court of Appeals ruled Friday in a case that began in a San Diego County high school district.

Reversing a District Court judgment, the 9th U.S. Court of Appeals in San Francisco made the ruling on a case involving Grossmont Union High School District, whose officials in 1982 directed the district’s five high school student newspapers not to sell advertising space to the San Diego Committee Against Registration and the Draft (CARD).

In a 2-1 vote, the justices ruled that the newspapers must accept the CARD advertisements pending a trial to determine whether the district’s policy violates the First Amendment’s freedom of speech guarantees.

In a 26-page majority ruling written by Justice Stephen Reinhardt, the court rejected claims by the Grossmont board that CARD’s ads are political and encourage students not to register for the draft, but that the recruiting ads are non-political and commercial.

The majority ruled that “the government’s interest in promoting military service is not an economic one; it is essentially political or governmental. Nor is any commercial transaction being proposed. . . . The subject of military service is controversial and political in nature.”

U.S. District Judge Edward Schwartz refused in April, 1983, to order CARD ads published. Schwartz agreed with the board that the recruiting ads were non-political and merely informed students of military career possibilities. CARD’s attorneys appealed, and Schwartz was reversed.

The appellate court called student papers “a limited public forum” with an obligation to present boths sides of an issue.

“In particular, the board cannot allow the presentation of one side of an issue but prohibit the presentation of the other side,” Reinhardt wrote for the majority. The five-member school board also engaged in “viewpoint-based discrimination,” and “had no power to restrict expression because of its message, its ideas, its subject matter or its content.”

Although the board had argued that the group’s name implied opposition to the draft, the majority ruled that this implication “is not, in our view, sufficient to support a conclusion that the organization advocates unlawful conduct. Moreover, there is nothing in the text of the advertisement suggesting that CARD encourages non-registration.”

CARD’s ad had been accepted at 12 other San Diego County high school newspapers. The ad appeared under a heading that read “Don’t Let the Draft Blow You Away,” and was accompanied by the statement: “Know your rights! Know your choices! If the draft starts tomorrow, you could be in boot camp 11 days later.” The ad included the group’s phone number and address.

Grossmont board members also defended their action by arguing that the exclusion of material written or sponsored by outsiders such as CARD from student newspapers increased students’ opportunities to express themselves in print. Although the court agreed that the board does have the authority to impose limits on material submitted by non-students, the majority ruling said board members acted in an arbitrary and unreasonable fashion in excluding CARD ads.

In a 12-page dissent, Justice J. Clifford Wallace said there was no evidence that the Grossmont board had intended political topics to be advertised in student newspapers, despite the acceptance of military ads. Instead, advertising was meant to help finance the newspapers and train student journalists, not to promote expression by non-students, Wallace said.

CARD officials and lawyers could not be reached for comment.

Supt. Robert Pyle, who approved the directive against CARD ads, was not available for comment nor were the district’s attorneys. However, Michael Eddy, director of student services, said the district is “very disappointed” with the decision.

“We are most concerned with the impact it will have on school newspapers in terms of outside agencies placing ads in the papers,” Eddy said.

He said that, despite the court’s findings, the board still feels that CARD’s ad encourages students to break the law by not registering for the draft.

“Not only does the group’s name imply non-registration, but it is very overt in saying that,” Eddy said. “They are advocating students not to register for the draft.”

Eddy said district officials had not read the opinion, but he said board members might decide to appeal the decision to the U.S. Supreme Court.

Student newspapers in the district still are accepting recruiting ads but, with less than two weeks remaining in the school year, Eddy said that CARD ads probably won’t run until September.