United States Servicemen's Fund v. KILLEEN IND. SCH. DIST., 73-1591.

• Decision Date: 16 April 1974
• Docket Number: No. 73-1591.,73-1591.
• Citation: 489 F.2d 693
• Parties: UNITED STATES SERVICEMEN'S FUND et al., Plaintiffs-Appellants, v. KILLEEN INDEPENDENT SCHOOL DISTRICT et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

489 F.2d 693 (1974)

UNITED STATES SERVICEMEN'S FUND et al., Plaintiffs-Appellants, v. KILLEEN INDEPENDENT SCHOOL DISTRICT et al., Defendants-Appellees.

No. 73-1591.

United States Court of Appeals, Fifth Circuit.

February 13, 1974.

Rehearing and Rehearing Denied April 16, 1974.

James M. Simons, Austin, Tex., for plaintiffs-appellants.

Bob Burleson, Jim D. Bowmer, Temple, Tex., for defendants-appellees.

Before WISDOM, AINSWORTH and GEE, Circuit Judges.

Rehearing and Rehearing En Banc Denied April 16, 1974.

PER CURIAM:

In August 1971 the United States Servicemen's Fund (USSF) applied to the Superintendent of Schools of Killeen Independent School District to use the high school auditorium in Killeen, Texas, to present a theatrical production on September 18, 1971. The USSF, according to the complaint, is a non-profit corporation "concerned with the welfare of persons who are serving or have served with the military". The performance, including skits, songs, and readings, some by well-known entertainers, was intended primarily for the soldiers at nearby Fort Hood. A representative of the USSF described the show as a "political satire on the war in Southeast Asia". It was a "counter-USO show", presenting "ideas against U. S. military involvement in Southeast Asia, and reflecting upon the `liberalization policies' of the Army".

On August 10, 1971, the School Board denied use of the auditorium to the USSF. The USSF and three individuals who alleged that they desired to attend the performance then sought in federal court a declaratory judgment and a preliminary injunction restraining the Killeen Independent School District from discriminating against the USSF and the individual plaintiffs because of their ideas and beliefs and enjoining the Board to make available the auditorium to the USSF. The court denied the preliminary injunction, and the USSF applied to this Circuit for a summary reversal and a preliminary injunction pending appeal. By order of an emergency panel on September 17, 1971, this Court denied the application, adding:

"The parties are advised that the court considers that the mere passing of September 18, 1971 without performance being held does not moot the case so far as the underlying issues on the constitutionality of the standards and their application by the public authorities are concerned."

United States Servicemen's Fund v. Killeen Independent School District, 5 Cir. 1971, No. 71-2787.¹ The district court entered final judgment on December 21, 1972, denying all relief.

We do not deviate from the opinion of this Court in 1971 that the "mere passing" of September 18, 1971, without a USSF performance in the Killeen High School auditorium did not moot the questions raised. The combined circumstances, however, convince us nevertheless that the appeal must now be dismissed as moot.

Not only has the date for the performance passed, but from the American viewpoint so has the conflict in...