Cook v. Babbitt, Civ. A. No. 91-0338 (RCL).

• Citation: 819 F. Supp. 1
• Decision Date: 01 April 1993
• Docket Number: Civ. A. No. 91-0338 (RCL).
• Parties: Lauren COOK, Plaintiff, v. Bruce BABBITT, Secretary of the Interior, Defendant.
• Court: U.S. District Court — District of Columbia

819 F. Supp. 1

Lauren COOK, Plaintiff, v. Bruce BABBITT, Secretary of the Interior, Defendant.

Civ. A. No. 91-0338 (RCL).

United States District Court, District of Columbia.

March 17, 1993.

Errata and Order, April 1, 1993.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Clint Bolick, Washington, DC, for plaintiff.

Sally Rider, Asst. U.S. Atty., Washington, DC, for defendant.

MEMORANDUM OPINION

LAMBERTH, District Judge.

This cause comes before the Court on cross motions for summary judgment. The defendant is the Secretary of the Interior. As such, he is responsible for the actions of National Park Service (NPS) officials. See 16 U.S.C. sec. 1 (1988). The plaintiff, Lauren Cook, is a member of the 21st Georgia Volunteer Infantry, one of the private groups of Civil War history enthusiasts who, outfitted in meticulously reproduced period clothing and accoutrements, take to the field for simulated maneuver and combat in NPS-sponsored events held at national battlefield parks.¹ On February 14, 1991, she filed a complaint alleging that the administrators of Antietam and certain other parks² did not allow her to portray a male soldier in certain NPS events because she is a woman, thus denying her equal protection of the laws in contravention of the Fifth Amendment's Due Process Clause. Plaintiff prayed for declaratory and injunctive relief, as well as attorney's fees.³ In particular, plaintiff asked the Court to order the Secretary of the Interior to amend the governing regulations to forbid NPS officials service-wide from using gender as a ground for discrimination in casting the dramatic roles called for by the scenarios they conceive. Plaintiff also seeks to have defendant officially reprimand the officials involved, and to have this Court enjoin the officials directly from retaliating against the 21st Georgia.

Because plaintiff's claim arises under the Federal Constitution, this Court has jurisdiction over the subject matter of this case. See 28 U.S.C. sec. 1331 (1988). The fact that defendant is an officer of the United States poses no obstacle to the exercise of this jurisdiction here, for in addition to nonstatutory theories of review, the Administrative Procedure Act, 5 U.S.C. secs. 702, 706(2)(B) (1988), waives the defense of sovereign immunity and empowers this Court to pass on the constitutionality of the agency action and provide the requested declaratory and injunctive relief.

Defendant flatly denies plaintiff's allegation of gender-based discrimination, arguing that the ground for any discrimination in deciding who is allowed to participate in the events is not gender, but historical accuracy. That is to say, the NPS officials did what they did not because of the immutable fact that plaintiff is a woman. They did so because plaintiff's costume was inaccurate in several respects, one of which was that she failed to disguise her gender effectively. Defendant maintains that anyone who meets the gender-neutral accuracy standards of NPS-6, as implemented by the administrators at each park, can play whatever role they want irrespective of gender. Defendant makes no effort to justify, under Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 456, 50 L.Ed.2d 397 (1976), the use of gender as a proxy for an important aspect of historical authenticity in casting dramatic roles in public education programs. Rather, this case presents the question of whether the officials in fact used gender as a proxy.

On February 3, 1992, after extensive discovery, plaintiff moved for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. The government responded with a summary judgment motion of its own on February 18, 1992. The Court has examined the briefs and underlying materials put forward by the parties. After careful consideration, the Court has decided to deny defendant's motion and to grant plaintiff's motion.

I.

A.

The Volunteer in the Parks Act of 1969 (VPA), 16 U.S.C. sec. 18g (1988), authorizes the Secretary of the Interior to enlist "the services of private individuals without compensation as volunteers for É interpretive functions É in É areas administered by the Secretary through the National Park Service." Pursuant to this authority, the Park Service promulgated the Interpretation Guideline, NPS Regulation 6, Release 3 (NPS-6) to govern interpretive programs throughout the national park system. Generally speaking, the regulation directs park administrators to achieve the greatest degree of historical accuracy that is reasonably practicable. Because the regulation applies service-wide, it must encompass as many historical themes as there are parks. Accordingly, NPS-6 is a general guideline and vests the officials in the field with discretion in designing the interpretive program that is most appropriate for their park. This includes setting the precise degree of verisimilitude in appearance, clothing, and accoutrements that they will require.

B.

There are three types of interpretive presentations outlined in NPS-6. Exactly what constitutes "acceptable `accuracy'" depends on which type of interpretive presentation is employed. NPS-6, supra, ch. 4, at 3. The first type of presentation is the Cultural Demonstration, which typically involves persons in traditional dress demonstrating the customs of some cultural group. Id. at 4. Examples would include a tribal dance performed by Native Americans. NPS-6 states a preference for the use of actual members of the cultural group in question, characterizing their presence as "a strong interpretive asset in promoting a sense of believability." Id. at 5.⁴

The second type of interpretive presentation is the Costumed Interpretation. The interpreter's function is simply to display the clothing of the day while lecturing to visitors about the history of the park and answering any questions they might have. Because the Costumed Interpreter is not pretending to be the person like whom he or she is dressed, concern for accuracy generally is limited to the clothing and the information conveyed to the visitors. Nevertheless, "care must be exercised not to mislead the public or create historical inaccuracies in their minds." Id. So NPS-6 directs interpreters who are manifestly inaccurate in other respects—for example, a Caucasian dressed as Frederick Douglass or a generic Sioux warrior—to "clearly point the inaccuracy out to the public." Id.

The third type of interpretive presentation, Living History, involves "first-person role-playing." It is this most ambitious form of interpretive presentation that is involved in this case. Living History interpreters actually assume the identity of either particular or generic historical figures. In encounters with visitors, they act and speak as if they are living in the past. Accordingly, they employ the first-person when conveying historical information to visitors about the historical personage they are portraying. To the visitor, it is supposed to be as if a Matthew Brady photograph or a Gilbert Stuart painting has come to life. The purpose is to foster a greater public interest in and understanding of American history.

Unlike Costumed Interpreters, Living History interpreters whose impressions are inaccurate in some respect cannot caution visitors not to draw a false inference about the past without compromising the integrity of their performance and undermining the visitors' willing suspension of disbelief. Accordingly, in Living History demonstrations, the requisite historical "accuracy includes not only the knowledge base of the interpreter, the reproduced clothing and objects involved but also the clearly identifiable physical characteristics (i.e., identifiable after costuming, makeup, etc.)" of the participant. Id. (emphasis added).

By way of illustration, NPS-6 would permit a burly, bearded male ranger leading a tour at the Women's Rights National Historical Monument to do a Costumed Interpretation of a suffragette if "staffing realities" so required, as long as he explained to the visitors that suffragettes were in fact women and that he was merely displaying the clothing of the day. But if the NPS sponsored a volunteer Living History presentation of a suffragette march, a person with the same physical characteristics would meet the accuracy requirements of NPS-6 only if he had a very clever disguise indeed.

II.

A.

This case concerns Living History events held at Antietam and other national battlefield parks (NBPs).⁵ The plaintiff, Lauren Cook, has portrayed a male soldier or fifer in fifteen such events between July 1989, when she took up this avocation, until sometime after November 1990, when she responded to defendant's first set of interrogatories. She is a devoted amateur and takes historical accuracy seriously. In putting together her outfit, she consulted military historians, conducted research on her own, and bore the expense of custom tailoring. Because women were not permitted in military ranks in midnineteenth century America,⁶ plaintiff tries to disguise her gender using various costuming techniques. She concedes that it is legitimate for NPS officials to require volunteers to mask inaccurate physical characteristics, including gender, at the events they sponsor. Her complaint is that the officials at Antietam categorically bar women from military roles regardless of how well an individual woman can do the impression. Their response—citing the fact that these events transpired when plaintiff had been doing Living History for only two months—was that plaintiff's impression was manifestly inaccurate in several respects, and that was what motivated their actions.

Seven of the fifteen events plaintiff attended were NPS-sponsored—two at Petersburg NBP, two at Gettysburg NBP, one at Appomattox Court House National History Park (NHP), a parade in Washington, D.C., and one, a Revolutionary War-era event, in St. Augustine, Florida. Pl's Resps. to Def's First Set of Interrogs. at...