Esperanza Peace/Just. Ctr. v. City of San Antonio, SA-98-CA-0696-OG.

• Decision Date: 15 May 2001
• Docket Number: No. SA-98-CA-0696-OG.,SA-98-CA-0696-OG.
• Parties: ESPERANZA PEACE AND JUSTICE CENTER, a Non-Profit Corporation, The San Antonio Lesbian & Gay Media Project, an Unincorporated Association, and VAN, an Unincorporated Association, Plaintiffs, v. CITY OF SAN ANTONIO, and Howard Peak, in his official capacity as Mayor of the City of San Antonio, Defendants.
• Court: U.S. District Court — Western District of Texas

Page 433

316 F.Supp.2d 433

ESPERANZA PEACE AND JUSTICE CENTER, a Non-Profit Corporation, The San Antonio Lesbian & Gay Media Project, an Unincorporated Association, and VAN, an Unincorporated Association, Plaintiffs, v. CITY OF SAN ANTONIO, and Howard Peak, in his official capacity as Mayor of the City of San Antonio, Defendants.

No. SA-98-CA-0696-OG.

United States District Court, W.D. Texas, San Antonio Division.

May 15, 2001.

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Amy H. Kastely, Center for Legal and Social Justice; Mary A. Kinney, Lawyers' Committee for Civil Rights; Carol Bertsch, Attorney at Law; and Isabel Cristina de la Riva of Wilson, Trevino, Freed, Valls & Trevino, LLP; all of San Antonio, TX, for Plaintiffs.

Michael Patrick Hodge and Amy M. Eubanks, both with the Office of the City Attorney, San Antonio, TX, for Defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

ORLANDO L. GARCIA, District Judge.

This case was tried to the Court on August 21 and 22, 2000. After considering the pleadings, the evidence presented, the arguments of counsel, the post-trial briefs (docket nos. 163, 167, and 171), and the controlling legal authority, the Court enters its findings of fact and conclusions of law in accordance with FED. R. CIV. P. 52.

The Court has federal question jurisdiction. 28 U.S.C. §§ 1331, 1367, 2201 and 2202.

Plaintiffs are organizations engaged in the arts, and in cultural and educational activities in San Antonio and Bexar County. They brought this suit when the San Antonio City Council voted to discontinue their funding in its fiscal year 1997-98 budget at its meeting on September 11, 1997. The City subsequently voted not to fund plaintiffs in its fiscal year 1998-99 budget as well. Plaintiffs bring three causes of action under 42 U.S.C. § 1983, alleging that: (1) the City committed viewpoint discrimination in violation of their free speech rights under the First Amendment; (2) the City committed animus-based discrimination in violation of their equal protection rights under the Fourteenth Amendment; and (3) the City retaliated against plaintiffs after they filed the present suit by denying their funding in the 1998-99 budget in violation of their First Amendment rights to petition the government and to free expression. Plaintiffs bring a fourth cause of action under the Texas Open Meetings Act alleging that the City violated the Act when council members informally deliberated regarding the budget and plaintiffs' funding in a closed meeting or series of meetings the evening prior to the September 11, 1997 public meeting. Plaintiffs are "persons" entitled to sue under 42 U.S.C. § 1983.

As will be explained below, defendants' decision to eliminate plaintiffs' funding constituted viewpoint discrimination in violation of the First Amendment, and a violation of plaintiffs' Fourteenth Amendment equal protection rights. Defendants did not retaliate against plaintiffs based on their filing of this lawsuit. Defendants violated the Texas Open Meetings Act, and their attempted ratification at the September 11, 1997 meeting was ineffective.

I. Factual background.

Plaintiff Esperanza Peace and Justice Center ("Esperanza") is a non-profit cultural arts and education center located in San Antonio, and incorporated as a non-profit organization under the law of Texas. Esperanza, founded in 1987, offers programming in visual arts, music, film, video, and cultural studies, as well as space and assistance to many local organizations and artists.¹ Esperanza's mission statement says:

The people of Esperanza dream of a world where everyone has civil rights and economic justice, where the environment is cared for, where cultures are honored and communities are safe. The Esperanza Center advocates for those wounded by domination and inequality — women, people of color, lesbians and gay men, the working class and poor. We believe in creating bridges between people by exchanging ideas and educating and empowering each other. We believe it is vital to share our visions of hope ... we are esperanza.²

Esperanza's Strategic Plan includes the following goals:

(1) To provide programming which generates multi-issue/multicultural community organizing while providing resources and space where the creation and presentation of the arts reflect the culture of people in struggle; (2) To construct, develop, and operate a permanent, safe, central, multi-purpose facility for artists, activists and other community members to do their work with a sense of community, history, quality, and hope; (3) To generate a consistent source of diversified income to support the goals and objectives of the organization.³

Esperanza's arts programming includes both seasonal programming and on-going skills-development projects.⁴ Its seasonal programming, called "PazARTE," includes the "Other America Film Festival," presenting films about communities and issues throughout the Americas, literary events and musical performances.⁵ The intent is to give voice to those who usually do not have access to art, including women, poor people, and people of color.⁶ The on-going, skills-development projects of Esperanza include "MujerArtes," a Westside community-arts economic-empowerment project in which low-income women develop their artistic skills and produce pottery for sale,⁷ and "Puentes de Poder," a program bringing together different communities to tell their stories and break down stereotypes.⁸

Plaintiff San Antonio Lesbian & Gay Media Project ("Media Project") is an unincorporated association formed for the purpose of promoting fair, accurate, and inclusive media images and portrayals of lesbians, gay men, bisexuals and transgendered persons.⁹ Since 1992, the Media Project has presented "Out at the Movies," a lesbian and gay film festival, the aim of which is to exhibit contemporary lesbian and gay film and video, to demonstrate the diversity of national and international lesbian and gay cultures (including films and videos from a variety of age, nationality, language, gender, religious, and historical perspectives), to increase discussion of current social issues within lesbian and gay communities, and to promote understanding within public media organizations.¹⁰ Plaintiff V ANN is an unincorporated association formed for the purpose of bringing national and international artists who are visiting or working in other parts of Texas to San Antonio for programs and networking.¹¹

Defendants are the City of San Antonio and its mayor, Howard Peak. They will sometimes be referred to collectively as "the City."

A. 1997 funding decision.

Since 1990, arts funding for the City of San Antonio has been vetted through the Department of Arts and Cultural Affairs (DACA),¹² for which the city council appoints an eleven-member Cultural Advisory Board (CAB). DACA was created in the City's 1988-89 budget to provide a full-service arts department for the City.¹³ The DACA Strategic Plan, which was adopted by the city council in 1993 (and amended by the city council periodically thereafter), provides the goals and general guidelines for allocating competitive arts grants to outside agencies.¹⁴ The DACA Strategic Plan establishes three criteria for evaluating arts funding applications: artistic excellence, audience development, and administrative capacity.¹⁵ These criteria are consistent with most government arts funding programs.¹⁶ The DACA Strategic Plan emphasizes the goals of funding agencies that provide diverse programming and reach traditionally underserved groups, and support programs that address social issues such as "AIDS, youth issues such as gangs and drugs, education, and the homeless population."¹⁷

In 1996, 1997, and 1998, the City distributed Guidelines and Application Forms to be used by outside agencies in their applications for City arts funding. These Guidelines and Application Forms were approved by the city council each year.¹⁸ The Guidelines and Application Forms distributed in these years informed prospective applicants of the goals behind the City's arts funding program and the process and criteria that would be used in evaluating the applications, as defined in the Strategic Plan.¹⁹

The Strategic Plan provides that applications for arts grants should be submitted to DACA and evaluated by the staff and by peer panels representing various artistic disciplines. The peer panels, selected by CAB, include arts professionals, experts experienced with arts organizations, and arts patrons.²⁰ The peer panels discuss the applications in open meetings and, using the Strategic Plan guidelines, rank the applications and make recommendations to CAB for awarding grants to applicants. Peer-panel chairpersons, DACA staff members, and the applicants then present the applications to CAB in an open meeting for discussion and final recommendations.²¹ Upon receiving DACA's recommendations, CAB holds public meetings, makes preliminary funding recommendations, and issues final funding recommendations to DACA's director.²² The final recommendations are then presented to the City Manager by DACA's Director as part of DACA's budget.²³ In order to obtain grant monies, the City represented to state and federal authorities that the City's arts funding decisions would be made based on the process set out in the Strategic Plan.²⁴

The City has neither created nor operated the arts funding program to convey a specific message of its own; rather, the City created an arts funding program because it recognized that art was important for matters of quality of life and economic development.²⁵ There is no City requirement that an applicant be exclusively involved in arts activities in order to qualify for City arts grants: the City can award grants to agencies that do not focus exclusively on arts as long as the activity that they were seeking support for had an arts or cultural purpose.²⁶ The City encouraged outside agencies to connect art and social...