Campbell v. St Tammany Prsh Sch ( 2000 )

Revised November 15, 2000
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-31071
Consolidated with No. 99-31140
SALLY CAMPBELL;
LOUISIANA CHRISTIAN COALITION,
Plaintiffs-Appellees,
versus
ST. TAMMANY PARISH SCHOOL BOARD; EDDIE FIELDING, in his official
capacity as a member of the St. Tammany Parish School Board; A.R.
SMITH, also known as Smitty Smith, in his official capacity as a
member of the St. Tammany Parish School Board; GREGORY J. SAURAGE,
in his official capacity as a member of the St. Tammany Parish
School Board; DONALD J. VILLERE, in his official capacity as a
member of the St. Tammany Parish School Board; PATTI YOUNG, in her
official capacity as a member of the St. Tammany Parish School
Board; DANIEL G. ZECHENELLY, in his official capacity as a member
of the St. Tammany Parish School Board; BETTY VERZWYVELT, in her
official capacity as a member of the St. Tammany Parish School
Board; JOHN C. LAMARQUE, in his official capacity as a member of
the St. Tammany Parish School Board; E. ROTH ALLEN, in his official
capacity as a member of the St. Tammany Parish School Board; JAMES
PANKS, SR., also known as Ronnie Panks, Sr., in his official
capacity as a member of the St. Tammany Parish School Board;
ANTHONY TEDESCO, also known as Tony Tedesco, in his official
capacity as a member of the St. Tammany Parish School Board; RAY A.
ALFRED, in his official capacity as a member of the St. Tammany
Parish School Board; MARY K. LYNCH, in her official capacity as a
member of the St. Tammany Parish School Board; CHARLES T. HARRELL,
in his official capacity as a member of the St. Tammany Parish
School Board; NEAL M. HENNEGAN, in his official capacity as a
member of the St. Tammany Parish School Board; LEONARD P.
MONTELEONE, in his official capacity as Superintendent of the St.
Tammany Parish School Board; WILLIAM B. BRADY, in his official
capacity as Administrative Supervisor of the St. Tammany Parish
School Board,
Defendants-Appellants.
Appeals from the United States District Court
For the Eastern District of Louisiana, New Orleans
_______________________
October 26, 2000
ORDER ON PETITION FOR PANEL REHEARING
(Opinion 3/9/00, 5 Cir., _____, _____ F.3d _____ )
Before POLITZ, JOHN R. GIBSON,* and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:
We held that the First Amendment does not force the St.
Tammany Parish School Board to permit partisan political activity,
for-profit fund-raising, and “religious services” in a limited
public forum, reserved for recreational and civic activities. The
entire court has refused to reconsider the panel’s opinion. The
panel has refused to reconsider for the reasons we will explain.
St. Tammany policy permits “the use of some of the public
school buildings as a limited public forum.”1 The policy permits
“civic and recreational meetings and entertainment and other uses
pertaining to the welfare of the community.”2 Basketball games,
Scout meetings, and dance or music recitals were the overwhelming
*
Circuit Judge of the Eighth Circuit, sitting by designation.
1
St. Tammany Parish School Board, Use of School Facilities
Policy (Nov. 13, 1997).
2
Id.
2
uses of the facilities disclosed by the record.3 While the policy
did not attempt to restrict First Amendment activity attendant to
such civic or recreational uses,4 it did exclude partisan political
activity, for-profit fund-raising, and “religious services or
religious instruction.”5 Tracking the prohibitions of the rule,
plaintiffs requested permission to use St. Tammany’s facilities on
a specific occasion “to worship the Lord in prayer and music” and
to “pray about” and “engage in religious and Bible instruction with
regard to” various issues.6 The school district denied the
request, and the plaintiffs filed suit. The district court granted
summary judgment for the plaintiffs, persuaded that the rule was
too vague. We reversed.
I
We remain convinced that St. Tammany has not created a public
forum. The government, when it chooses to open a forum,
necessarily has leeway to establish the terms upon which the forum
is opened. Thus, for example, in Lehman v. City of Shaker
3
There is a complete stipulation covering the use of school
facilities under the rules at issue here suggesting in part that
many groups like to play basketball.
4
Compare Bd. of Airport Comm’rs v. Jews for Jesus, 482 U.S.
569 (1987) (striking down a categorical ban on First Amendment
activity in airports).
5
St. Tammany Parish School Board, Use of School Facilities
Policy (Nov. 13, 1977).
6
Campbell v. St. Tammany’s Sch. Bd., 206 F.3d 482, 484 (5th
Cir. 2000).
3
Heights,7 a city government had the prerogative to exclude
political advertising, even though it generally allowed commercial
advertising on city busses.8 This even though political speech
lies at the core of the First Amendment. St. Tammany has done no
more than exercise that leeway. It does not censor First Amendment
activity attendant to the civic or recreational use of school
facilities. It merely forbids three activities, albeit expressive
activities: partisan political activity, for-profit fund-raising,
and religious services.
Since a middle school is not a traditional public forum,9 the
type of forum created by the St. Tammany policy is a function of
the intent of the Board. As the Supreme Court held in Cornelius v.
NAACP Legal Defense and Educational Fund,10
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.
Accordingly, the Court has looked to the policy and practice
of the government to ascertain whether it intended to
designate a place not traditionally open to assembly and
debate as a public forum. The Court has also examined the
nature of the property and its compatibility with expressive
activity to discern the government’s intent.11
7
418 U.S. 298 (1974).
8
418 U.S. at 300-02.
9
See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 267
(1988) (“The public schools do not possess all of the attributes of
streets, parks, and other traditional public forums . . . .”).
10
473 U.S. 788 (1985).
11
473 U.S. at 802.
4
Here, the intent of St. Tammany is abundantly clear. The policy
begins by indicating that it seeks to create “a limited public
forum.”12 That intent, to limit use of the forum, is reinforced by
the restrictions imposed in the policy: no partisan political
activity, no for-profit fund-raising, and no religious services.
These evenhanded exclusions, which the record shows to have been
uniformly enforced, also rebut any inference that the purpose
statement is somehow pretextual, or made in bad faith. That St.
Tammany does not censor speech incident to the civic and
recreational uses for which the forum was opened, even specifically
including religious viewpoints, “does not imply that the forum
thereby becomes a public forum for First Amendment purposes.”13 It
merely implies that St. Tammany assiduously avoided viewpoint
discrimination, while still limiting the purposes for which it
opened its schools.
St. Tammany has not permitted an indiscriminate range of uses.
Express permission, almost always in writing, is required before
using any of the school facilities. Many groups use the
facilities, but for only a handful of purposes. Although “civic
and recreational” uses might have a quite different meaning in San
Francisco or Chicago, the local school board, familiar with St.
Tammany Parish culture, knew what “civic and recreational” uses
12
St. Tammany Parish School Board, Use of School Facilities
Policy (Nov. 13, 1997).
13
473 U.S. at 805.
5
meant in St. Tammany. Their expectations regarding the activities
they were permitting were not disappointed, and the uses made of
school facilities in no way frustrated the board’s explicit purpose
of creating a limited public forum. For example, well over half of
the uses reported in the record are affirmatively described as
sports, dance or music recitals, or Scouting events.14 The record
affirmatively reflects that almost seventy-five percent of all uses
were for activities directly related to students, including PTA
meetings, standardized tests, and graduations. Although the record
shows some that civic groups, such as the Chamber of Commerce or
homeowners’ associations, occasionally met in a school cafeteria,
the record contains no evidence of the content of the programs,
beyond occasional annotations referring to annual teas or banquets.
Some plainly were relevant to students; a Lion’s Club, for example,
“adopted” a school. In sum, the record shows that St. Tammany
schools were overwhelmingly used by groups for activity of interest
to students or parents. Such a limited set of uses does not create
a public forum, as the Supreme Court held in Perry Education
Association v. Perry Local Educators’ Association:
14
While groups having a religious character often used the
schools, the record reveals that those groups almost always played
basketball: “Knights of Columbus: Hoop Shots”; “Starlight Baptist:
Basketball Practice.” The Fellowship of Christian Athletes
apparently shares this proclivity for basketball. One request for
use read: “We need a place to practice [basketball] because Slidell
High’s gym is being used for Fellowship of Christian Athletes.”
This is in fact the only mention in the record of use by this
group, despite Plaintiffs’ efforts to highlight it.
6
We can only conclude that the schools do allow some outside
organizations such as the YMCA, Cub Scouts, and other civic
and church organizations to use the facilities. This type of
selective access does not transform government property into
a public forum. . . . Moreover, even if we assume that by
granting access to the Cub Scouts, YMCA’s, and parochial
schools, the School District has created a “limited” public
forum, the constitutional right of access would in any event
extend only to other entities of similar character. While the
school mail facilities thus might be a forum generally open
for use by the Girl Scouts, the local boys’ club, and other
organizations that engage in activities of interest and
educational relevance to students, they would not as a
consequence be open to an organization such as PLEA, which is
concerned with the terms and conditions of teacher
employment.15
On the record of this case St. Tammany has not created a public
forum. It limited use at all times, and the uses it allowed are
overwhelmingly typical interests and activities of students and
parents – mostly recreation and sport.
St. Tammany is attempting to open its school facilities. A
contrary holding would frustrate that objective and diminish,
rather than increase, opportunities for freedom of speech. Under
the Supreme Court’s jurisprudence, a government entity such as a
school board has the opportunity to open its facilities to activity
protected by the First Amendment, without inviting political and
religious activities presented in a form that would disserve its
efforts to maintain neutrality. We are persuaded that the
Constitution does not deprive local school boards of that choice,
and courts stand ready to hear complaints of pretext or bad faith.
15
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S.
37, 47-48 (1983) (emphasis added).
7
Were we to hold otherwise, a school board would be put to a choice
of maintaining a public forum or no forum at all. Just as church
services could not be excluded from a public forum, neither could
partisan political activities or for-profit fund-raising. There is
no “in between” forum in which religious services must be allowed
but partisan political activity can be banned. The concept of a
limited public forum does not permit such preferences – a
preference for religion that itself could be seen as viewpoint
based.16 Nor could St. Tammany allow civic and recreational uses,
but categorically bar all attendant First Amendment activity.17
Thus, if St. Tammany cannot define and limit the forum it creates,
it may have no alternative but to close its doors to all after-
hours activity.
II
We remain convinced that St. Tammany’s policy is not viewpoint
discriminatory. By its plain language, St. Tammany’s policy
permits the expression of religious viewpoints. Immediately after
the provision challenged here, barring “religious services or
religious instruction on school premises,” the policy goes on to
state: “However, the use of school facilities by outside
organizations or groups outside school hours for the purpose of
discussing religious material or material which contains a
16
See Heffron v. Int’l Soc’y for Krishna Consciousness, Inc.,
452 U.S. 640, 652-53 (1981).
17
See Jews for Jesus, 482 U.S. at 577.
8
religious viewpoint or for distributing such material is
permissible if it does not interfere with one of the primary uses
of such facilities.”18 The policy’s express tolerance of discussion
from a religious viewpoint rebuts any inference of viewpoint
discrimination.
St. Tammany’s policy is supported by rational reasons
sufficient to rebut any inference that its decision to exclude
religious services was viewpoint discriminatory. Especially where,
as here, the school district has affirmative evidence that its
motive was not viewpoint discrimination,19 such reasons need only
be rational. They need not be compelling. St. Tammany has not
singled out religious speech for unfavorable treatment. What St.
Tammany has done is to prohibit three forms of potential activities
that might erode the neutrality of the schools. St. Tammany bars
partisan political activity, lest the schools be drawn into
partisan frays or give an appearance of support for Democrats or
Republicans. St. Tammany bars religious services, lest the schools
appear to prefer Christians or Muslims, and religion over non-
religion.20 It does not matter that the Establishment Clause does
18
St. Tammany Parish School Board, Use of School Facilities
Policy (Nov. 13, 1997) (emphasis added).
19
The provisions of St. Tammany’s policy that expressly permit
discussion of religious viewpoints provide affirmative evidence
that the policy is not driven by viewpoint discrimination.
20
This parallelism raises the question of how far the
Plaintiffs would take their reasoning. Would not St. Tammany also
be required to allow Democrats and Republicans to hold rallies on
9
not require St. Tammany to exclude religious services. The school
board could rationally decide as it did in discharging the duty of
evenhanded treatment. Nor does it matter that federal judges would
cast a different vote were they members of the school board, or
that political winds encourage such views – at least, it should not
matter.
This distinction, between prohibiting religious services and
prohibiting expression from a religious viewpoint, is no more
conceptually difficult than the distinction between prohibiting
picketing and prohibiting all picketing except that which bears on
a labor dispute.21 A religious service is an activity, a manner of
communicating which carries a very special and distinct meaning in
our culture. While a service may express a religious viewpoint,
for example, a Catholic mass featuring a prayer for the welfare of
the unborn and for the reform of American abortion law, the
distinction is between medium and message.22 Under St. Tammany’s
school campuses? See Heffron, 452 U.S. at 652-53.
21
See Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95-97
(1972) (noting that the “operative distinction is the message on
the picket sign,” and explaining past jurisprudence as
“condemn[ing] . . . discrimination among different users of the
same medium of expression”).
22
Widmar v. Vincent, 454 U.S. 263, 269 (1981), is not to the
contrary. As the Supreme Court made clear in Cornelius, the
University in Widmar had “evidenced a clear intent to create a
public forum.” 473 U.S. at 802. The error made by the University,
which Widmar corrected, was the “erroneous conclusion that the
Establishment Clause required the exclusion of groups meeting for
religious purposes.” 473 U.S. at 803. Here, by contrast, St.
Tammany has evidenced, by its rules and by the manner of
10
policy, thus, a Catholic group could assemble on school property to
“discuss” a Christian anti-abortion viewpoint and “distribute . .
. material” advocating a Christian anti-abortion viewpoint. They
would only run afoul of the policy if they also chose to “conduct
religious services.”23
“[R]eligious organizations” do not “enjoy rights to
communicate . . . superior to those of other organizations having
social, political or ideological messages to proselytize.”24 In
this case, St. Tammany decided that it did not wish to create a
public forum. Rather, it preferred a policy of not restricting
free expression attending the permitted uses of school facilities,
while still avoiding forms of expressive activity that it believed
eroded its goal of neutrality. No one in this case contends that
St. Tammany is guilty of viewpoint discrimination because it bars
partisan political activity. Insisting here that St. Tammany’s ban
on religious services is unconstitutional looks less like a reach
for equal treatment, and more like a reach for an affirmative
preference for religious speakers over political speakers.
III
In denying rehearing we note that in the present case, the
enforcement, a clear intent to create only a limited public forum.
23
The churches of St. Tammany Parish have little or no
interest in using a school facility for such purposes, as a scan of
the uses made discloses.
24
Heffron, 452 U.S. at 652-53.
11
Plaintiff specifically requested accommodations for a single
program of religious worship and instruction. The carefully framed
request for use did not propose to lecture or teach religion or
religious tenets. The Coalition’s request and the St. Tammany
rules are fairly read to speak to worship services. St. Tammany
policy follows its prohibition of religious instruction with an
explicit statement that “discussing religious material or material
which contains a religious viewpoint” is permitted. Read in
context, the distinction between religious instruction as part of
a religious service and instructing on the matter of religion is
clear. St. Tammany’s rules need not be read to prohibit the
latter.25 In any event, that question is not presented in this
case.
IV
Plaintiffs draw to our attention the Supreme Court’s decision
to grant certiorari in Good News Club v. Milford Central School.26
This case, however, is materially different. The Milford policy
provides that “School premises shall not be used . . . for
religious purposes.”27 There is a powerful argument that such a
prohibition against the use of facilities for a religious purpose
25
See Bronx Household of Faith v. Cmty. Sch. Dist. No. 10, 127
F.3d 207, 217 (2d Cir. 1997) (Cabranes, J., concurring in part and
dissenting in part).
26
202 F.3d 502 (2d Cir. 2000), cert granted 2000 WL 838152.
27
202 F.3d at 507.
12
is facially invalid as inevitably presenting viewpoint
discrimination. This sharply contrasts with St. Tammany Parish’s
prohibition of a religious service. The purpose of the speaker is
not the inquiry in St. Tammany Parish. Nor does it present the
question of religious instruction. In St. Tammany Parish the
request was to “worship the Lord in prayer and music . . .,” as we
have explained.
The baseline of both the majority and the dissenting opinions
in the Second Circuit’s decision in Good News Club was that a
worship service could properly be excluded. In the limited forum
created by St. Tammany Parish, there is no restriction upon
religious activity, including teaching from a religious
perspective, attending use of the school facility unless it was
partisan political activity, for profit activity, or a religious
service. To illustrate our point, as we have read the St. Tammany
Parish rule, encouraging children to memorize Bible verses with
opening and concluding prayer may be a religious activity, it may
have a religious purpose, but it would not be prohibited as a
religious service. St. Tammany Parish’s rule against religious
service is facially valid, and there is no evidence that its
efforts to create a limited public forum or its application of its
rules are a pretext for viewpoint-based discrimination. Fairly
read in context, the rule draws a clear common sense distinction.
That the meaning of a rule prohibiting a religious service can be
13
taxed at its margins is no fatal vice. It is understandable and
falls far short of an unlicensed power to censor. The
evenhandedness of St. Tammany’s regulations of its school
facilities belies any contrary suggestion.
V
Treating the Petition for Rehearing En Banc as a Petition for
Panel Rehearing, the Petition for Panel Rehearing is DENIED. The
court having been polled at the request of one of the members of
the court and a majority of the judges who are in regular active
service not having voted in favor (FED. R. APP. P. and 5TH CIR. R.
35), the Petition for Rehearing En Banc is DENIED.
14
EDITH H. JONES, Circuit Judge, with whom SMITH, BARKSDALE, EMILIO
M. GARZA, and DeMOSS, Circuit Judges, dissenting from the denial of
rehearing en banc:
This is an equal access case. The question is whether
public authorities may exclude “religious services or religious
instruction” as after-hour rental uses of school facilities, when
they have permitted all other uses consistent with the “welfare of
the public”, except partisan political activity28 and for-profit
fund-raising. In upholding this blatant discrimination against
religious speech, a panel of our court seriously erred. Campbell
v. St. Tammany Parish Sch. Bd., 206 F.3d 482 (5th Cir. 2000). Its
opinion conflicts with the Supreme Court’s equal access and
viewpoint discrimination cases, decisions of five other circuit
courts, and previous Fifth Circuit cases. We dissent from the
denial of en banc review.
The facts are straightforward. The St. Tammany Parish
School Board allows after-hours use of its facilities for civic,
social and recreational purposes, subject to the exceptions noted
above. Over sixty buildings have been opened to hundreds of
community groups.29 But Sally Campbell and the Christian Coalition
28
No issue of partisan political use of the school
buildings is before us in this case.
29
These include the Fellowship of Christian Athletes; Mt.
Zion Methodist Church Annual Tea; Wildlife and Fisheries Hunter
safety training; Southeastern University Community Education
15
were, under this policy, denied permission to use the facilities to
discuss educational, family and political issues, to pray about
those issues, to teach the Bible with regard to those issues, and
to worship God in prayer and music.
As the panel noted, this case turns initially on what
type of expressive forum the school board created. When public
facilities are available “for indiscriminate use by the general
public”, a designated public forum exists, and content-based
exclusion of speakers must survive strict scrutiny review. Perry
Education Ass’n. v. Perry Local Educators’ Ass’n., 460 U.S. 37, 47,
103 S.Ct. 948, 956 (1983). If, however, because of the narrow
scope of its intended use, a forum is non-public, then reasonable,
viewpoint-neutral content restrictions may be imposed. See, e.g.
Perry 460 U.S. at 47, 103 S.Ct. 956 (teachers’ mailboxes are a
nonpublic forum); Lamb’s Chapel v. Center Moriches Union Free Sch.
Dist., 508 U.S. 384, 113 S.Ct. 2141 (1993) (excluding religious
classes; Mary Dee’s Dance Studio recital; church black history
program; Young Marines meeting; Knights of Columbus meeting; Pride-
Rape defense program, etc. The St. Tammany School facilities have
been used for a variety of other purposes, such as: Righteous
Rumble Youth Conference; Brugier Homeowner’s Association Candidate
Forum; Northshore DARE Association meeting; Willow Wood Homeowner’s
Association meeting; Folsom Native Plant Society meeting; Northwest
St. Tammany Civic Association meeting; Primary Colors Pre-school
Christmas program; Relay for Life Cancer fundraiser; Pearl River
Volunteer Fire Department banquet; First Church of God banquet;
Drainage Board meeting; Gold Wing Riders benefit; Boy and Girl
Scouts meetings; Young Blood International seminar; wedding
reception; EPA meeting; Kiwanis Club breakfast; Sister-to-Sister
conference; and Commission on Families fair.
16
viewpoint from access to after-hours use of school facilities is
unconstitutional).
The panel’s first error lies in its allowing St.
Tammany’s policy to dictate what type of forum exists. The panel
observes the Board’s written limits on use of school facilities and
concludes that, because political and for-profit fundraising
activities are prohibited as well as religious instruction or
worship, the Board was not solely motivated to discriminate against
religious speech. Further, the district policy restricts “more
types of uses” than a policy that the Second Circuit held did not
create a public forum. Bronx Household of Faith v. Community Sch.
Dist. No. 10., 127 F.3d F.3d 207, 210 (2nd Cir. 1997). Implicitly,
the panel holds that the panoply of what the school district
permits is less important to the forum determination than the
speech it excludes.30
With due respect, the panel is looking through the wrong
end of the telescope. Such a narrow view of the conditions under
which a designated public forum can arise is incorrect. “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.” Widmar v. Vincent, 454 U.S.
30For reasons that are not clear, the panel in its lengthy
order on panel rehearing, no longer perceives this as a “minimally
sufficient” case to maintain the school buildings’ status as a non-
public forum. See Campbell, 206 F.3d at 487.
17
263, 267-68, 102 S.Ct. 269, 273 (1981) (emphasis added). See also
Perry, 460 U.S. at 45, 103 S.Ct. at 955. All that is required is
that the forum be “generally open” to the public: “Once a forum is
opened up to assembly or speaking by some groups, government may
not prohibit others from assembling or speaking on the basis of
what they intend to say.” Police Department of Chicago v. Mosley,
408 U.S. 92, 96, 92 S.Ct. 2286, 2290 (1972) (emphasis added). See
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 267, 108 S.Ct.
562, 568 (1988)(public facilities opened for indiscriminate use by
the general public “or by some segment of the public” are
designated public fora).
Also pertinent for present purposes, the Supreme Court
has strongly suggested that a designated public forum is created
when a school district, which purports to prohibit after-hours
“religious uses” of public facilities, nevertheless allows access
by a wide variety of private organizations, including some that may
have carried out religious purposes. See Lamb’s Chapel,508 U.S. at
391, 113 S.Ct. at 2146 (1993);31 see also Bronx Household, 127 F.3d
31“The Church argued below that because under Rule 10 of
the rules issued by the District, school property could be used for
‘social, civic, and recreational’ purposes, the District had opened
its property for such a wide variety of communicative purposes that
restrictions on communicative uses of the property were subject to
the same constitutional limitations as restrictions in traditional
public forums such as parks and sidewalks. Hence, its view was
that subject matter or speaker exclusions on District property were
required to be justified by a compelling state interest and to be
narrowly drawn to achieve that end. . . . The argument has
considerable force, for the District’s property is heavily used by
18
207, 218 (2nd Cir. 1997)(Cabranes, J., concurring and dissenting)
(noting that Bronx Household is bound to non-public forum
description of school district policy by circuit precedent,
notwithstanding “anvil-like hint” in Lamb’s Chapel).
Contrary to the panel decision, most circuit courts have
recognized that the government “create[s] a public forum by
allowing diverse groups to use its auditorium.” Concerned Women
for America, Inc. v. Lafayette County, 883 F.2d 32, 34 (5th Cir.
1989). That a public school rather than a university or library or
ballpark is the facility in question makes no difference. See
Grace Bible Fellowship 941 F.2d 45 (1st Cir. 1991)(Breyer, J., on
the panel); Gregoire v. Centennial Sch. Dist., 907 F.3d 1366 (3rd
Cir. 1990). It is what the school district “does, not what it
says” that determines the type of forum. Gregoire, 907 F.2d at
1374 (citing Board of Education v. Mergens, 496 U.S. 226, 244, 110
S.Ct. 2336, 2369 (1990)). Were it otherwise, a public body could
unilaterally narrow a designated public forum so as to exclude
disfavored groups, cynically circumventing the Supreme Court’s
public forum jurisprudence. This court and others have thwarted
such obvious machinations. Gregoire, 907 F.2d at 1378; Hays County
Guardian v. Supple, 969 F.2d 111, 117-18 (5th Cir. 1992).
a wide variety of public organizations, including some that
presented a “close question,” which the Court of Appeals resolved
in the District’s favor, as to whether the District had in fact
already opened its property for religious uses.” Lamb’s Chapel,
id. at 2146. (footnote omitted) (emphasis added).
19
Since the broad “welfare of the community” standard and
the actual use of the facilities, rather than the district’s
exclusion of three categories of speech, determine the type of
forum, it should have been plain that the St. Tammany policy
created a limited public forum. See, e.g., Grace Bible Fellowship,
941 F.2d at 47; Gregoire, 907 F.2d at 1374, 1375. Cases in which
non-public fora were found, by contrast, were those in which the
forum is not dedicated to general debate or the free exchange of
ideas, or the nature of the property is “inconsistent with
expressive activity.” Cornelius v. NAACP Legal Defense and
Education Fund, 473 U.S. 788, 803, 105 S.Ct. 3439, 3449 (1985).32
Neither of those descriptions accords with St. Tammany’s policy or
practice.
Under the proper test, the district facilities were open
“indifferently”33 for use by private groups. The content-based
exclusion of religious speakers from access to the facilities is
32
The various cases finding that a non-public forum existed
are clearly distinguishable from the present factual situation.
See Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714(1974) (limited access to advertising space on buses); Greer v.
Spock, 424 U.S. 828, 96 S.Ct. 1211 (1976) (military base is a non-
public forum); Adderley v. Florida, 385 U.S. 39, 87 S. Ct. 242(1966) (jailhouse grounds not public forum); Cornelius, 473 U.S.
788, 105 S.Ct. 3439 (1985) (federal workplace exists to accomplish
the business of the employer and is thus not open to all charitable
organizations). See also Perry,460 U.S. at 47, 103 S.Ct. at 956.
33
Knights of the Ku Klux Klan v. East Baton Rouge Parish
Sch. Bd., 578 F.2d 1122 (5th Cir. 1978).
20
censorship pure and simple. Grace Bible Fellowship, 941 F.2d at
47. As the Supreme Court explains,
If a state refused to let religious groups use
facilities open to others, then it would
demonstrate not neutrality but hostility
toward religion. “The Establishment Clause
does not license government to treat religion
and those who teach or practice it, simply by
virtue of their status as such, as subversive
of American ideals and therefore subject to
unique disabilities.”
Board of Education of Westside Community Schools Mergens, 496 U.S.
226, 248, 110 S.Ct. 2356, 2371 (1990) (citing McDaniel v. Paty, 435
U.S. 618, 641, 98 S.Ct. 1322, 1335 (1978) (Brennan, J., concurring
in judgment)) (emphasis added).34
The panel’s second error was to construe the board’s
policy, if it legitimately created a non-public forum, as
maintaining both a reasonable and viewpoint-neutral content
restriction against religious worship and instruction. In a
nonpublic forum, “content discrimination may be permissible if it
preserves the purposes of that limited forum, [but] viewpoint
discrimination . . . is presumed impermissible when directed
against speech otherwise within the forum’s limitations.”
34
See also Widmar, 454 U.S. at 269, 102 S.Ct. at 274 (if
the government creates a “generally open forum,” it cannot
discriminate against groups “engag[ing] in religious worship and
discussion [since] [t]hese are forms of speech and association
protected by the First Amendment”). So much for the panel’s
attempted distinction between religious meetings and “religious
instruction and worship.”
21
Rosenberger v. Rector & Visitors of the Univ. of Virginia, 515 U.S.
819, 829-30, 115 S.Ct. 2510, 2517 (1995).
The panel opinion says nothing about the policy’s
reasonableness, which must be judged in light of the forum’s
general “welfare of the public” standard. The omission is
particularly curious given the Supreme Court’s criticism in Lamb’s
Chapel that the lower court there had failed to examine the
reasonableness of a restriction against using school buildings
after-hours for “religious purposes.” One would suppose that
without a finding of its reasonableness vis à vis the scope of the
forum, a content restriction is doomed. Lamb’s Chapel, 508 U.S.
at 393 n. 6, 113 S.Ct. at 2147 n. 6.
The policy is, in any event, unreasonable. Perhaps it
was motivated by fear that public schools would become the font of
off-hours sectarian activity, but there is no record evidence of
this. If, on the other hand, the fears relate to excessive use of
the facilities, the district could review its custodial regulations
to assure that all off-hours costs were recovered. But there is no
evidence of these fears, either. Compare Fairfax Cov. Church v.
Fairfax County School Board, 17 F.3d 703 (4th Cir. 1994). Finally,
no legitimate Establishment Clause violation occurs from allowing
religious groups equal access to after-hours rentals.35
35
“It does not violate the Establishment Clause for a
public [school] to grant access to its facilities on a religion-
neutral basis to a wide spectrum of ... groups, including groups
that use meeting rooms for sectarian activities, accompanied by
22
The crux of the issue is this: when measured against the
“welfare of the public standard,” how can the prohibition of
religious worship or instruction be anything other than viewpoint
discrimination? Even the Second Circuit understood that religious
worship services are “the ultimate in speech from a religious
viewpoint,” Bronx Household, 127 F.3d at 215. To describe the
exclusion as covering “religious activity” somehow outside the pale
of the community’s welfare makes no sense. Such a distinction not
only invites active censorship by the St. Tammany School Board -
e.g., does a prayer or Christian exhortation at the Fellowship of
Christian Athletes meeting make it a religious worship service?36
– but it flatly discriminates against those who practice, rather
than simply profess or talk about, religion. Both of these effects
have been condemned by the Supreme Court’s equal access
jurisprudence.
Most recently, the Court ruled that when a university
funds student publications generally, and does not exclude religion
as a subject matter, it is unconstitutional for the school to
discriminate based on some speaker’s religious viewpoint.
some devotional exercise.” Rosenberger, 515 U.S. at 842, 115 S.Ct.
at 2523. Since the facilities are used after-hours, there is no
threat of a captive audience; since the facilities are used by a
variety of groups, there is no threat of the schools endorsing
religion: “[B]y creating a forum the [school] does not thereby
endorse or promote any of the particular ideas aired there.”
Widmar, 454 U.S. at 271 n.10, 102 S.Ct. at 275 n.10.
36
See n.2 supra.
23
Rosenberger, supra. Allowing the Fellowship of Christian Athletes,
the Knights of Columbus and other religious groups to use the St.
Tammany facilities demonstrates, along with the board’s broad
written access policy, that religious subject matter is not
excluded from after-hours rentals. Rosenberger made plain that
“the guarantee of neutrality is respected, not offended, when the
government, following neutral criteria and even-handed policies,
extends benefits to recipients whose ideologies and viewpoints,
including religious ones, are broad and diverse.” Rosenberger, 515
U.S. at 839, 115 S.Ct. at 2521; see also 515 U.S. at 846 n. 5, 115
S.Ct. at 2525 (O’Connor, J., concurring), (emphasizing that
exclusion of religious groups would evince hostility to religion),
n. 5. Rosenberger condemned the imposition of viewpoint
distinctions by the university that would inevitably lead to
“governmental censorship, to ensure that all student writings and
publications meet some baseline standard of secular orthodoxy.”
515 U.S. at 844, 115 S.Ct. at 2524. So it is in this case.
Rosenberger then repeated the description of this danger from one
of the Court’s first equal access cases:
[T]he dissent fails to establish that the distinction
[between ‘religious’ speech and speech ‘about’ religion]
has intelligible content. There is no indication when
“singing hymns, reading scripture, and teaching biblical
principals” cease to be “singing, teaching, and reading”-
-all apparently forms of “speech,” despite their
religious subject matter--and become unprotected
“worship.” . . . [E]ven if the distinction drew an
arguably principled line, it is highly doubtful it would
lie within the judicial competence to administer. Merely
24
to draw the distinction would require the university--and
ultimately the courts--to inquire into the significance
of words and practices to different religious faiths, and
in varying circumstances by the same faith. Such
inquiries would tend inevitably to entangle the State
with religion in a manner forbidden by our cases.
Rosenberger, 515 U.S. at 845, 115 S.Ct. at 2524 (citing Widmar, 454
U.S. at 269-70, n.6, 102 S.Ct. at 274, n.6)(citations omitted).37
To paraphrase one court, the panel opinion would allow
atheists to put on a program denouncing religion or anti-Semites to
sponsor a rant against Judaism, but it would not allow religious
believers of any stripe to convene or instruct the faithful in this
forum. See Church on the Rock, 84 F.3d at 1279; see also Grace
37
See also Church on the Rock v. City of Albuquerque, 84
F.3d 1273, 1278 (10th Cir. 1996) (overturning a prohibition against
using an otherwise publicly available senior citizens’ center for
religious worship). The court held that:
... even if the City had not previously opened the Senior
Centers to presentations on religious subjects, its
policy would still amount to viewpoint discrimination.
Any prohibition of sectarian instruction where other
instruction is permitted is inherently non-neutral with
respect to viewpoint. Instruction becomes “sectarian”
when it manifests a preference for a set of religious
beliefs. Because there is no non-religious sectarian
instruction (and indeed the concept is a contradiction in
terms), a restriction prohibiting sectarian instruction
intrinsically favors secularism at the expense of
religion. Therefore, we conclude that the City’s policy
constitutes viewpoint determination.
See also Good News/Good Sports Club v. School District of the City
of Ladue, 28 F.3d 1501, 1507 (8th Cir. 1994).
25
Bible Fellowship, 941 F.2d at 47. This is the very essence of
viewpoint discrimination.
It is unfortunate for the citizens of the Fifth Circuit
that this court has seen fit to retreat from equal treatment of
religious speech and to deviate from fifteen years of consistent
Supreme Court jurisprudence on the subject. The St. Tammany school
board was not required to open its facilities for the “welfare of
the public.” Once it did so, however, it could not arbitrarily
discriminate against religious speakers. We dissent from the
denial of rehearing en banc.
26