IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-31071
Consolidated with No. 99-31140
SALLY CAMPBELL;
LOUISIANA CHRISTIAN COALITION,
Plaintiffs-Appellees,
versus
ST. TAMMANY’S SCHOOL BOARD; EDDIE FIELDING, in his official
capacity as a member of the St. Tammany Parish School Board; A.R.
SMITH, in his official capacity as a member of the St. Tammany
Parish School Board; Also known as Smitty Smith; GREGORY J.
SAURAGE, in his official capacity as a member of the St. Tammany
Parish School Board; DONALD J. VILLERE, in his official capacity as
a member of the St. Tammany Parish School Board; PATTI YOUNG, in
her official capacity as a member of the St. Tammany Parish School
Board; DANIEL G. ZECHENELLY, in his official capacity as a member
of the St. Tammany Parish School Board; BETTY VERZWYVELT, in her
official capacity as a member of the St. Tammany Parish School
Board; JOHN C. LAMARQUE, in his official capacity as a member of
the St. Tammany Parish School Board; E. ROTH ALLEN, in his official
capacity as a member of the St. Tammany Parish School Board; JAMES
PANKS, SR., in his official capacity as a member of the St. Tammany
Parish School Board; also known as Ronnie Panks, Sr.; ANTHONY
TEDESCO, also known as Tony Todesco, in his official capacity as a
member of the St. Tammany Parish School Board; RAY A. ALFRED, in
his official capacity as a member of the St. Tammany Parish School
Board; MARY K. LYNCH, in her official capacity as a member of the
St. Tammany Parish School Board; CHARLES T. HARRELL, in his
official capacity as a member of the St. Tammany Parish School
Board; NEAL M. HENNEGAN, in his official capacity as a member of
the St. Tammany Parish School Board; LEONARD P. MONTELEONE, in his
official capacity as Superintendent of St. Tammany Parish School
Board; WILLIAM B. BRADY, in his official capacity as Administrative
Supervisor of St. Tammany Parish School Board,
Defendants-Appellants.
Appeals from the United States District Court
for the Eastern District of Louisiana
March 9, 2000
Before POLITZ, JOHN R. GIBSON,* and HIGGINBOTHAM, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
This is a First Amendment challenge to St. Tammany’s School
District’s building use policy, which prohibits non-student uses
involving religious worship or religious instruction. The District
appeals the district court’s judgment that the policy is
unconstitutionally vague. Because we find that the terms
“religious instruction” and “religious worship” used in the policy
have understandable meaning and have not been inconsistently
applied by the District, we REVERSE the grant of summary judgment
for the plaintiffs, Sally Campbell and the Louisiana Christian
Coalition. We also grant summary judgment to the District, holding
that its use policy is viewpoint neutral consistent with the First
Amendment.
I
St. Tammany’s School District developed a written use policy
for non-student groups who wish to use school facilities after
hours. That policy permits buildings to be used for civic,
recreational and entertainment purposes that are open to the public
and pertain to the “welfare of the public.” It does not permit
*
Circuit Judge of the Eighth Circuit, sitting by designation.
2
partisan political activity or for-profit fund-raising. At issue
in this case, the policy also forbids uses involving “religious
services or religious instruction” but permits discussions of
religious material or material containing a religious viewpoint.
In June 1998, Sally Campbell and the Louisiana Christian
Coalition requested use of school facilities for a “prayer meeting”
at which the group planned
to worship the Lord in prayer and music. . . . to discuss
family and political issues, pray about those issues, and
seek to engage in religious and Biblical instruction with
regard to those issues.
The District denied the request, citing the policy, and this suit
followed. The parties filed cross-motions for summary judgment.
The district court granted summary judgment to Campbell, holding
that the policy was facially vague. After an unsuccessful motion
for new trial or motion for stay of judgment, the District timely
appealed.
II
The district court held that the District’s policy was
unconstitutionally vague. The district court concluded that there
was no intelligible way of determining when speech involving
religious material or with a religious viewpoint, permitted by the
policy, crossed over into religious instruction, forbidden by the
policy. The court also noted that there was no definition of
“religious worship” provided in the policy. We review these
questions of law de novo.
3
A rule is unconstitutionally vague if “men of common
intelligence must necessarily guess at its meaning and differ as to
its application.”1 For example, in Hall v. Board of School
Commissioners, the court held that a school’s rule regarding the
distribution of political material was vague where approval turned
solely on an administrator’s unguided discretion.2 Even if a rule
is understandable, it also may fail vagueness analysis if it is
inconsistently or arbitrarily applied.3
The policy here does feature specific prohibitions. Thus,
unlike the disallowed policy in Hall, the District’s policy does
not consist of an administrator’s whims. Campbell claims that the
terms used, however, are so unclear as to be unconstitutionally
vague. As applied to Campbell’s request, which includes verbatim
some of the prohibited terms, the policy is not even arguably
vague. The group planned to “worship the Lord in prayer and music”
and “engage in religious and Biblical instruction.” There can be
no doubt that these activities are included within the policy’s
disallowed uses.
Further, Campbell makes no showing that the District has
arbitrarily applied the statute to her group. The accepted
applications that had been made on behalf of religious groups were
1
Connally v. General Const. Co., 269 U.S. 385, 391 (1926).
2
681 F.2d 965, 967-68 (5th Cir. 1982).
3
Dallas Assn. of Community Org.’s For Reform Now v. Dallas
County Hosp. Dist., 670 F.2d 629, 633 (5th Cir. 1982).
4
musical concerts or banquets, activities distinguishable from a
prayer meeting. Having expressly requested a school building for
uses disallowed by the policy, Campbell is hard-pressed to make an
as-applied claim of unconstitutional vagueness.4
As a facial challenge, we fail to see how the terms “religious
instruction” and “religious worship” would provoke confusion
amounting to unconstitutional vagueness. There is a clear core
meaning. The terms have a common meaning such that people can use
them without particular difficulty. While the language might be
subject to ambiguity at the margins -- for example, the line
between instruction and discussion may blur at the edges -- that
effect is no more than the limits of language stretched by the
active imagination of hypothesized application. To the point, we
are not persuaded of uncertainty sufficiently chilling of speech to
find the policy to be substantially overbroad.5
Campbell points to the deposed school administrators’ desire
to define the terms contextually as evidence that the terms are
vague. A term may take meaning from its context, however, without
being unconstitutionally vague. One court, in rejecting a claim of
vagueness regarding the same terms, wrote:
4
Campbell also cites various licensing cases describing
procedural safeguards. She does not explain why those rules apply
here, or what procedural injury she suffered: the request was
handled in a timely way and involved review by higher-ups.
5
See Los Angeles Police Dept. v. United Reporting Publ’g
Corp., 120 S. Ct. 483, 489-90 (1999).
5
[T]he terms “religious services and religious
instruction” have a common meaning such that people of
ordinary intelligence -- perhaps after some thought --
can understand what conduct is prohibited. A performance
of Handel’s Messiah, for example, need not be a religious
service. It depends upon the context and purpose for
which it is performed.6
The testimony from school administrators in the record reflects
such a common-sense, contextual understanding of “religious
instruction” and “religious worship”. School board member Edward
Fielding stated that “religious worship” included a program that
acknowledges God and involves religious activities such as song,
prayer and Bible study. Superintendent Leonard Monteleone gave
examples of “religious instruction” as including “interpretations
of Bible readings” and “practices within a certain denominational
faith.” While the District’s ability to describe the contested
terms does not determine whether the policy is vague, it does
illustrate that the terms have everyday, understandable meanings.
We reject Campbell’s claim that the policy is unconstitutionally
vague.
III
6
Trinity United Methodist Parish v. Board of Educ., 907 F.
Supp. 707, 718-19 (S.D.N.Y. 1995).
6
Both parties argue that this court should grant summary
judgment on First Amendment grounds,7 an issue on which they had
filed cross-motions for summary judgment in the district court.
The first question is where the District’s policy falls in the
Supreme Court’s forum analysis. The right to speak on public
property is largely dependent on the nature of the forum in which
the speech is delivered. If the government has designated a forum
as public, even if it was not traditionally public, the
government’s exclusion of a group from the forum is subject to
strict scrutiny. If the government has not so opened the forum,
the government may exclude groups as long as that exclusion is
reasonable and viewpoint neutral.8
To avoid strict scrutiny, the District’s policy thus must not
have created a public forum. Although a school is not a
traditional public forum, a district may designate it as such by
indiscriminately permitting use by the public at large for assembly
and speech.9 A school may selectively open itself to some public
7
Campbell also makes a passing equal protection claim that is
indistinguishable from her First Amendment claim. She further
claims that the policy violates the Religion Clauses of the First
Amendment but provides no evidence of how the policy hinders her
free exercise or excessively entangles the District in religious
affairs.
8
See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 103 S.
Ct. 948, 954-55 (1983).
9
See Perry, 103 S. Ct. at 954.
7
use, however, without creating a designated public forum.10 In such
cases, the government may restrict access to certain kinds of
groups or to the discussion of certain topics.11
At some point, the allowance of a sufficiently wide variety of
uses creates a designated public forum.12 Before us is the question
of where this line should be drawn. In cases where courts have
held that schools had created a public forum, the school’s access
policy was completely open except for a religious prohibition.13
The Second Circuit held in Bronx Household v. Community School
District that a policy forbidding meetings sponsored by political
organizations, religious services and religious instruction did not
create a designated public forum.14
10
See id. at 956 (discussing use of school mailboxes by various
organizations).
11
See Rosenberger v. Rector & Visitors of Univ. of Va., 115 S.
Ct. 2510, 2516-17 (1995). The Court has variously labeled such
access a “non-public” or “limited public” forum. See Rosenberger,
115 S. Ct. at 2516; Lamb’s Chapel v. Center Moriches Union Free
Sch. Dist., 113 S. Ct. 2141, 2147 (1993).
12
See Lamb’s Chapel, 113 S. Ct. at 2146 & n.5.
13
See Widmar v. Vincent, 454 U.S. 263, 265, 267 (1981); Grace
Bible Fellowship, Inc. v. Maine Sch. Admin. Dist. No. 5, 941 F.2d
45, 46-47 (1st Cir. 1991).
14
127 F.3d 207, 210 (2d Cir. 1997). In Lamb’s Chapel, the
Supreme Court noted that there was a strong argument that the
school district had created a public forum through its broad use
policy, which was essentially identical to that in Bronx Household.
In Lamb’s Chapel, however, the Court found particularly relevant
that the district had permitted a lecture by a New Age religious
group. See Lamb’s Chapel, 113 S. Ct. at 2143-44, 2146 n.5. The
case was decided on other grounds.
8
The District’s use policy, which excludes partisan political
activity, for-profit fund-raising, and the religious activities at
issue, creates few limitations on use and skates close to
establishing a designated public forum. Unlike the policies held
to have created a public forum through indiscriminate use, however,
the District’s policy prohibits several types of uses; the
District’s policy restricts more types of uses than the use policy
held not to have created a public forum in Bronx Household.15 The
policy’s restrictions indicate that the school’s purposes in
allowing some public use have not reached the point at which any
use – save targeted religious activities – is allowed. We are thus
persuaded that the restrictions are minimally sufficient to
maintain the school buildings’ status as a non-public forum.
Campbell contends that the District’s policy does not pass
muster even under the analysis applicable to non-public forums. If
a school allows limited public access, the limits must reasonably
relate to the purposes of the forum and may discriminate only on
the basis of content, not viewpoint.16 The government may not
exclude a speaker with a religious viewpoint if it has permitted
15
Concerned Women for America v. Lafayette County, 883 F.2d 32
(5th Cir. 1989), is not controlling here. First, the case decided
only that the plaintiffs’ showed a substantial likelihood of
prevailing on their claim that a library had created a public
forum. Concerned Women, 883 F.2d at 34. Second, the forum at
issue was not a school, which is presumptively not a public forum
unless the government designates it as such, but a public library.
16
See Rosenberger, 115 S. Ct. at 2517.
9
other speakers on similar topics.17 Campbell claims both that the
policy discriminates on viewpoint and that the District has already
permitted other speakers on similar topics.
First, Campbell contends that the exclusion of religious
services and religious instruction is viewpoint discrimination, not
content discrimination. In Lamb’s Chapel v. Center Moriches Union
Free School District, the exclusion of a meeting on a subject
permitted by a school district was unconstitutional because it was
disallowed only because of the speaker’s religious viewpoint.18
This does not mean that any ban on religious activities amounts to
viewpoint discrimination. Religion may be either a perspective on
a topic such as marriage or may be a substantive activity in
itself. In the latter case, the government’s exclusion of the
activity is discrimination based on content, not viewpoint.
The Bronx Household court held that religious services and
religious instruction are activities which may be excluded as
content-based discrimination.19 We agree with this approach,
finding that religious services and instruction are not simply
approaches to a topic, but activities whose primary purpose is to
teach and experience the subject of religion. These are activities
distinct from a topical discussion, a social gathering, or a
17
See Lamb’s Chapel, 113 S. Ct. at 2147; Gregoire v. Centennial
Sch. Dist., 907 F.2d 1366, 1374-75 (3d Cir. 1990).
18
Lamb’s Chapel, 113 S. Ct. at 2147-48.
19
Bronx Household, 127 F.3d at 215.
10
political meeting.20 The District has excluded such religious
activities but does not forbid speakers on general topics with a
religious perspective -- a distinction that viewpoint neutrality
permits.
Finally, Campbell argues that the District has already opened
the property for religious uses by permitting a church banquet and
a gospel choir. While these groups may have had religious
affiliations, the events involved no religious instruction and were
not prayer meetings. We are not persuaded that the District has
already permitted speakers on similar topics.
We hold that the District’s use policy complies with the First
Amendment as being neither unconstitutionally vague nor viewpoint
discriminatory.
REVERSED.
20
See Rosenberger, 115 S. Ct. at 2517 (distinguishing religion
as a subject matter from religion as a viewpoint).
11