Lawrence U. Bicent. Com'n v. City of Appleton, Wis.

• Decision Date: 02 April 1976
• Docket Number: No. 76-C-183.,76-C-183.
• Citation: 409 F. Supp. 1319
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: LAWRENCE UNIVERSITY BICENTENNIAL COMMISSION et al., Plaintiffs, v. CITY OF APPLETON, WISCONSIN, a Municipal Corporation et al., Defendants.

409 F. Supp. 1319

LAWRENCE UNIVERSITY BICENTENNIAL COMMISSION et al., Plaintiffs, v. CITY OF APPLETON, WISCONSIN, a Municipal Corporation et al., Defendants.

No. 76-C-183.

United States District Court, E. D. Wisconsin.

April 2, 1976.

James R. Hill and F. David Krizenesky, Menasha, Wis., for plaintiffs.

Peter S. Nelson, Appleton, Wis., for defendants, Bd. of Ed. of the Appleton City School District, McClanahan, Becker, O'Connell, and Gibson.

David G. Geenen, City Atty., Appleton, Wis., for defendants, City of Appleton, Appleton City School District, and remaining defendants.

MEMORANDUM DECISION AND ORDER

REYNOLDS, Chief Judge.

I.

The circumstances giving rise to this lawsuit may be simply stated: The Board of Education of Joint School District No. 10, City of Appleton, et al., disapproved the Lawrence University Bicentennial Commission's application for permission to rent the Appleton High School East gymnasium on the evening of May 16, 1976, for purposes of a public lecture by Angela Davis. The complaint in this action alleges that this refusal to rent the facility in question constitutes a violation of certain rights secured to the plaintiffs by the First, Ninth, and Fourteenth Amendments to the Constitution of the United States. The complaint prays for injunctive relief, a declaratory judgment, damages, costs, and attorney's fees.

The plaintiffs' verified complaint was accompanied by a motion for a preliminary injunction directing the defendants to permit the plaintiffs to use the Appleton High School East gymnasium on the evening of May 16, 1976, for purposes of the Davis lecture. A hearing was held on the plaintiffs' motion on March 24, 1976, at the conclusion of which the Court orally granted the plaintiffs' motion. This memorandum decision and order follows in accordance with the requirements of Rules 52(a) and 65(d) of the Federal Rules of Civil Procedure.

II.

Four plaintiffs are named in the complaint. The Lawrence University Bicentennial Commission (the "Commission") is alleged to be an unincorporated association of college students enrolled at Lawrence University in Appleton, Wisconsin. The Commission is alleged to have approximately thirteen members, and to have as its purpose the presentation of a lecture program in conjunction with the celebration of our nation's bicentennial year. Gary Weiss and Sharon Maquita Moody are alleged to be officers of the Commission and bring this suit as individuals and on behalf of the Commission. Jill Hoffenberg is alleged to be a taxpayer of Joint School District No. 10, City of Appleton, et al. (the "School District"), and brings suit on behalf of herself and a class of persons alleged to be similarly situated.

The complaint names eight persons and three entities as defendants. The defendant City of Appleton (the "City") is alleged to be a municipal corporation organized pursuant to the laws of the State of Wisconsin. The defendant School District is alleged to be operated by the City pursuant to Subchapter II of Chapter 120 of the Wisconsin Statutes. The defendant Board of Education of Joint School District No. 10, City of Appleton, et al. (the "Board"), is alleged to be the governing body of the School District. Defendants McClanahan, Becker, O'Connell, and Gibson are sued as individuals and in their official capacities as members of the Board. Defendants Sager, Lillge, and Heid are sued only in their official capacities as members of the Board. Defendant Zieman is sued in his official capacity as the administrator of the School District.

The complaint alleges that this court is vested with jurisdiction to consider the plaintiffs' claims pursuant to the provisions of §§ 1331, 1332, 1343, 2201, and 2202 of Title 28 of the United States Code. The complaint further alleges that this action is brought pursuant to the Civil Rights Act, 42 U.S.C. § 1983.

At the outset, the Court notes that questions might well be raised as to the standing of plaintiff Hoffenberg and this court's subject matter jurisdiction over the claims which plaintiffs advance against the School District, the Board, and the City. See Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), and City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973). The Court, however, hesitates to attempt a full resolution of the questions in the absence of a more extensive record and the arguments of counsel directed to such issues. For purposes of the motion for a preliminary injunction, it will suffice for the Court to hold that the complaint by the plaintiffs Lawrence University Bicentennial Commission, Weiss, and Moody amply states a cause of action under 42 U.S.C. § 1983 against the eight named individual defendants, cognizable in this court pursuant to the jurisdictional provisions of 28 U.S.C. § 1343. See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).

III.

Without foreclosing in any way the right of the parties to fully litigate genuine issues of fact upon the ultimate trial on the merits with respect to final relief, the Court makes the following findings of fact for purposes of deciding the plaintiffs' motion for a preliminary injunction. These findings of fact are based upon the records and affidavits on file in this action and the representations of counsel made in open court at the hearing in this matter held on March 24, 1976.

Sometime prior to February 23, 1976, the members of the plaintiff Commission decided to sponsor a public lecture by Angela Davis who is presently a professor at Claremont College, Claremont, California. The proposed subject of such lecture was "200 Years of Social Change in the United States." Angela Davis is a black woman, a member of the Communist Party of the United States, and the holder of a Doctor of Philosophy degree. Ms. Davis has previously given lectures on the subject of women's rights, the rights of black people, and the rights of those persons whom she believes are being held as political prisoners by various governments throughout the world.

Members of the plaintiff Commission thereupon contacted a lecture bureau responsible for scheduling Ms. Davis and arranged for her appearance in Appleton on April 28, 1976. Plaintiff Weiss thereafter made application to the School District for permission to rent the Appleton High School East gymnasium (the "gymnasium") for the evening of April 28, 1976. That application was referred to the members of the Board for their consideration at a meeting held on February 23, 1976.

Prior to the events herein involved, the Board promulgated certain written policies governing the rental of school buildings by members of the public, the relevant portions of which are as follows:

"5500 Use of Buildings, Equipment and Personnel It is the Policy of the Board of Education to encourage use of public school buildings by the people in the community. The Board of Education has adopted the policy of renting out all school facilities on a break-even basis due to budgetary reasons. * * *"

"5520 The following represent general guideline rules for the governance of groups granted permission to use public school facilities:

* * * * * *

"5522 Buildings are not to be used for religious or political activities unless the activity is non-partisan or non-denominational."

At the meeting of the Board on February 23, 1976, plaintiff Weiss stated that Ms. Davis would not be appearing as a political speaker or as a spokesperson for any political party, in compliance with § 5522. The Board nevertheless voted 3 to 2 not to allow school facilities to be rented for the proposed lecture.

At the next meeting of the Board on March 8, 1976, its members were requested to reconsider their previous decision and to permit the rental of the gymnasium for Ms. Davis' lecture which had been rescheduled to the evening of May 16, 1976. At that meeting, an attorney for the Commission was questioned by a member of the Board as to the possibility of violence or disruption at the proposed lecture. He responded by stating that to his knowledge there had not been instances of violence or disruption at any previous lecture by Ms. Davis, nor was there any indication that a disturbance might occur at the proposed lecture. No claim was made, nor was any evidence produced, that would tend to indicate that the proposed subject of the lecture would be different than that suggested by the Commission's attorney in a written presentation made to the Board:

"* * * The subject of Ms. Davis' lecture is the rights of human beings whom she believes to have been discriminated against in the past — the rights of minorities to equal opportunities in this country, the rights of women to be free from sexual assault and the right of all persons not to be imprisoned on account of their race, their sex or their political and religious beliefs. As indicated above she will not be speaking on behalf of a political party or any candidate for a political party. Her talk is clearly non-partisan — racism and political repression are issues which concern all political parties and should concern us all as individuals. * * *" (Complaint, Exhibit "B".)

Despite these representations, the Board voted 4 to 2 to deny the Commission's request for permission to rent the gymnasium for the evening of May 16, 1976. The complaint in this action was filed four days later.

IV.

As previously noted, the plaintiffs have consistently contended, both to the Board and this Court, that Ms. Davis' lecture will be nonpartisan and not political in nature, and that therefore the intended use of the gymnasium is not in violation of § 5522. Plaintiffs also contend (perhaps in the alternative) that facilities under the control of the members of the Board have previously been rented for purposes of a wide variety of programs, including speeches by holders of public office, candidates for public office, and other persons speaking on topics of political and social...