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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 

4. 92-518
 
 


 

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. 

5. 92-518 

 

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. 

* * * * * 

6. 92-518