Knights of Ku Klux Klan, Realm of Louisiana v. East Baton Rouge Parish School Bd.

• Citation: 578 F.2d 1122
• Decision Date: 25 August 1978
• Docket Number: No. 76-2801,76-2801
• Parties: KNIGHTS OF the KU KLUX KLAN, REALM OF LOUISIANA, Plaintiff-Appellant, v. EAST BATON ROUGE PARISH SCHOOL BOARD et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1122

578 F.2d 1122

KNIGHTS OF the KU KLUX KLAN, REALM OF LOUISIANA, Plaintiff-Appellant, v. EAST BATON ROUGE PARISH SCHOOL BOARD et al., Defendants-Appellees.

No. 76-2801.

United States Court of Appeals Fifth Circuit.

Aug. 25, 1978.

Lawrence R. Anderson, Jr., Baton Rouge, La., John Reed, Gen. Counsel, ACLU of La., New Orleans, La., for plaintiff-appellant.

John F. Ward, Jr., Baton Rouge, La., for East Baton Rouge Parish school bd.

Robert S. Leake, Asst. U. S. Atty., Baton Rouge, La., William H. Taft, IV, Gen. Counsel, George Lyon, Atty., Arline Mendelson, Dept. of H. E. W., Drew S. Days, III, Asst. Atty. Gen., Civ. Rights Div., Dept. of Justice, Washington, D. C., for U. S. Dept. of Health, Ed. and Welfare.

Appeal from the United States District Court for the Middle District of Louisiana.

Before TUTTLE, GEE and FAY, Circuit Judges.

GEE, Circuit Judge:

As of November 1975, defendant East Baton Rouge Parish School Board (Board) maintained a standing policy of allowing outside organizations to use school facilities for meetings and gatherings during nonschool hours. Permission was granted on a first-come, first-serve basis, on condition of a modest rental and the payment of any overtime custodial or janitorial expenses occasioned. In granting permission for such use, no distinction between applicants was made on the basis of their political or ideological views, and organizations holding a variety of such views had in the past availed themselves of school facilities.

Early that month plaintiff-appellant, Knights of the Ku Klux Klan, Realm of Louisiana (KKK), a Louisiana nonprofit corporation chartered August 8, 1975, applied in due form for use of a high school gymnasium to hold what it termed a patriotic meeting on the night of Saturday, November 22. By letter of November 17, the Board granted permission for the meeting. ¹ This letter was received by KKK on the following day, or shortly thereafter, and matters proceeded. This letter, together with the other communications between the parties to which we shall refer, will be found in the appendix to this opinion, as an exhibit to the factual stipulation of the parties printed there in full.

But the planned meeting was not to be, for wind of it had come to the Branch Office for Civil Rights ² of the United States Department of Health, Education and Welfare in Dallas, Texas. On November 19, Dr. John A. Bell, Branch Chief in Dallas, telephoned the Board, confirming by telegram, that permitting use of school facilities for such a meeting would violate certain regulations ³ promulgated pursuant to the Emergency School Aid Act, 20 U.S.C. § 1601 Et seq. (ESAA). These regulations, partly quoted in the wire, denied federal funds to any educational agency permitting use of its facilities by a group "which discriminates against minority group children aged 5 to 17 inclusive, in its admissions or membership policies, or otherwise practices . . . discrimination against such children on the basis of race, color, or national origin . . . ." Dr. Bell's telegram continued with threats that if the KKK meeting were permitted he would "constitute (sic) enforcement proceedings seeking the termination of all ESAA funding to your district" and that the use would also violate Title VI and thus "trigger an enforcement action . . . to end all federal financial assistance to your district." The next day, November 20, faced with the loss of annual payments in the millions, the Board withdrew its permission for KKK to use the gymnasium.

The following day Dr. Bell, having observed the effect of his barrage, attempted a partial unfiring of the guns. In a wire to the Board, he suggested that the first amendment, as well as ESAA and Title VI, might be seen as cutting some figure in the Board's decision and that the Board should consider it too in determining what course to follow. He stated also that if the first amendment Required that KKK's use be permitted, such a use could not be grounds for enforcement action under any federal program. Thus, the Board was left to redetermine correctly, in a maximum of two days and arguably at its peril either way, the difficult issues with which we grapple today. Not surprisingly, it sat steady in the boat and took no action to reverse the cancellation.

Indeed, at the same meeting at which it had cancelled the KKK meeting the Board had also declared a moratorium on further use of school facilities by outside private organizations pending the fashioning of a new policy designed to avoid both the first amendment Scylla and the HEW Charybdis. And several months later, on February 19, 1976, the Board adopted its present policy. That policy, pertinent portions of which are set out in the Appendix, frankly discriminates among applicants on the basis of the content of the ideas they advocate and, arguably, on their membership and meeting-attendance policies. Among those excluded from use of the facilities are groups advocating racial discrimination, as KKK admittedly does. Plaintiff immediately amended its complaint to attack the new policy on first amendment grounds, as stigmatizing particular political preferences or beliefs and as "chilling" rights of freedom of speech, assembly and association.

At a hearing on April 20, 1976, the district court denied the preliminary and permanent injunctions requested by plaintiff against application to it of the new policy; ruled that the policy did not violate equal protection or improperly deny rights of speech, assembly or association; and dismissed the suit in its entirety. In so doing, the court observed from the bench that the facts in the case were stipulated and not in dispute. It also enunciated, as the basis for its ruling, its conclusion that while such views as the Board's new policy prohibited were constitutionally protected in their expression in any place "made public for multiple or general purposes," public school buildings were a special case. The court went on to state its belief that such views were contrary to the law of the land and that the Board could properly conclude and adopt as a policy that permitting the advocacy of such ideas on premises built and used for educational purposes might have a detrimental effect on the orderly use of them for these primary purposes.

We are thus presented on this appeal with one basic issue, our resolution of which would be dispositive: may an agency of the state, consistently with the Constitution, condition the off-time use of public school facilities on the political or ideological views of the applicant, on its membership policies, or perhaps on who may be permitted to attend its proposed function?

Preliminary First Amendment Considerations

Our analysis first requires us to apply to the particular facts of this case the general "public forum" doctrine enunciated by the Supreme Court in Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972):

The nature of a place, "the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable." Although a silent vigil may not unduly interfere with a public library, Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966), making a speech in the reading room almost certainly would. That same speech should be perfectly appropriate in a park. The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time. Our cases make clear that in assessing the reasonableness of a regulation, we must weigh heavily the fact that communication is involved; the regulation must be narrowly tailored to further the State's legitimate interest.

408 U.S. at 116-17, 92 S.Ct. at 2303-04 (footnotes omitted) (emphasis added).

This is not difficult; indeed, the Board has resolved this matter for us by historically permitting, on a continuing and indifferent basis, the use of these facilities during non-school hours by private organizations. Thus, it would be difficult for the Board or any other party to maintain that after- school meetings and similar activities in the facilities concerned interfere, as a general proposition, with their use or are inappropriate to it.

Further First Amendment Contentions

Though we have ascertained that we treat of a facility dedicated to such uses as that proposed by KKK a public forum for such purposes appellees would have it that our first amendment inquiry is not concluded. They seek to distinguish use of the facilities by KKK from uses by other groups on several grounds: that such a use would hinder desegregation efforts, that the KKK meeting might lead to violence, that KKK is a "segregated" organization (in the sense that only whites may join), and that the rally may not have been open to all racial segments of the public.

Unfortunately for appellees' position at this stage of the proceedings, however, none of these contentions was advanced below. Nothing in any of appellees' pleadings so much as suggests any of them, nor did any appellee advance any of them in the reported arguments before the court below. No evidence was offered in their support, and such indications regarding them as may be found in the factual stipulation of the parties tend, with one exception (that KKK has never had a Negro member), to negative rather than to establish them. Thus, the contentions are entitled to little if any consideration by us now. On the remand which we order for trial on the merits, appellees may, of course, advance and seek to establish them to the extent that they are relevant to that proceeding as it develops. Appellees indeed urge such a remand, while appellant KKK urges that we declare the Board's new policy unconstitutional and permanently enjoin appellees from denying appellant use of the school facilities on the basis of it. As in Cason v. City of Jacksonville, 497 F.2d 949 (5th Cir. 1974), however, we are...