(concurring in part and dissenting in part).
I concur in the court’s ruling that expression of racist and anti-Semitic views does not bar the speaker from using public facilities. This much has long been settled and needs no elaboration. Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969); Collin v. Chicago Park District, 460 F.2d 746 (7th Cir. 1972).
I dissent from that portion of the court’s opinion that compels the State of Virginia to furnish a high school auditorium for public and private meetings of a political party that bars black people from membership. On this issue, the facts are not in dispute. The National Socialist White People’s Party, a successor to the American Nazi Party, was incorporated in Virginia under the name of the “George Lincoln Rockwell Party.” One of the purposes stated in its charter is “the gaining of political power in the United States by all legal means and the elective process.” Membership is open only to white persons who embrace the Party’s fundamental doctrines.
The Arlington County School Board initially granted the Party’s application to use a high school auditorium for a public meeting. The Party then issued a news release announcing a rally in the auditorium, stating “all interested members of the general public [excluding Jews and Negroes] have been invited .” When a school official learned of this release, anticipating violence, he immediately revoked the permit to use the auditorium and refunded the Party’s rental fee. The Party nevertheless refused to cancel the rally and distributed flyers proclaiming that: “If you’re a non-Jewish White person, you are invited . . .’’On the evening of the rally the school was closed and guarded by police. Members of the Party noisily demonstrated at the school and at the home of the official who had revoked the permit. Subsequently, the Board denied the Party’s applications for the use of facilities in which to hold other public and private meetings.
The Party claims that the Board’s denial of a meeting place infringes the rights secured to it by the first and fourteenth amendments. I reject these claims because in my view the state possesses adequate power to deny the use of public buildings to organizations that exclude black people from membership.
I
FOURTEENTH AMENDMENT
The Party’s claim that it has been denied equal protection of the laws because the Board has rented school facilities to other discriminatory organizations requires but brief comment. The record discloses that the Board has rented its facilities to churches which presumably *1020exclude from membership those persons who do not subscribe to their religious doctrines. This fact, however, is of no moment. There is no evidence that any church group discriminated on racial grounds. Moreover, our national policy as expressed in the establishment and free exercise clauses of the first amendment is to encourage, not discourage, a plurality of religions. E. g., Walz v. Tax Comm’n, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970) (tax exemptions for churches allowed). Quite the contrary is true of racial discrimination. E. g., Green v. Connally, 330 P. Supp. 1150 (D.D.C.), aff’d sub nom. Coit v. Green, 404 U.S. 997, 92 S.Ct. 564, 30 L.Ed.2d 550 (1971) (tax exemptions for private segregated schools denied). The adoption of three constitutional amendments and the enactment of laws over the course of a century to secure civil rights affirm our national goal of eradicating all government-fostered racial discrimination.
Although the record discloses that the Board has rented its facilities to organizations that practice racial discrimination, there is no proof that the Board knew of the discrimination when it entered into the rental agreements. Indeed, when the Board found that the Party had invited “the general public [excluding Jews and Negroes]” to the rally it commendably revoked the Party’s permit to use the auditorium.1 There is no suggestion in the record that the Board would have acted differently with respect to other lessees. But even if the Party had been able to show that the Board had knowingly rented its facilities to racially discriminatory organizations, this fact would not compel the Board’s rental of school property to the Party. A contrary conclusion would preclude any state agency from ending a past policy of discrimination. As Mr. Chief Justice Vinson said in another context: “Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.” Shelley v. Kraemer, 334 U.S. 1, 22, 68 S.Ct. 836, 846, 92 L.Ed. 1161 (1948).
The Party’s fourteenth amendment argument is also foreclosed by Railway Mail Ass’n v. Corsi, 326 U.S. 88, 65 S.Ct. 1483, 89 L.Ed. 2072 (1945), which upheld the constitutionality of a New York law forbidding racial discrimination in labor unions against a fourteenth amendment challenge. Speaking for the Court, Mr. Justice Reed said: “A judicial determination that such legislation violated the Fourteenth Amendment would be a distortion of the policy manifested in that amendment which was adopted to prevent state legislation designed to perpetuate discrimination on the basis of race or color.” 326 U.S. at 93, 65 S.Ct. at 1487. Concurring, Mr. Justice Frankfurter added: “To use the Fourteenth Amendment as a sword against such State power would stultify that Amendment.” 326 U.S. at 98, 65 S.Ct. at 1489.
I conclude, therefore, that the fourteenth amendment does not authorize a federal court to compel a state to rent its property to an organization that bars black people from membership.
II
FIRST AMENDMENT
Were this case concerned solely with prior restraint on freedom of speech and assembly, I would not dissent. But this appeal does not turn on the right to preach racial hatred and religious bigotry. The first amendment clearly grants this right whether the speech is made in a park, on a street, or in a building that has been designated as a public forum. It is the Party’s exclusion of black citi*1021zens, not its message, that justified the Board’s refusal to rent the auditorium.
Contrary to the Party’s assertion, its first amendment rights are not so overriding that its racially discriminatory membership policy is irrelevant. Freedom of speech, assembly, and association are guaranteed by the first amendment to political organizations. Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972). Indeed, these rights are indispensable to a democracy. Nevertheless, the guarantee of first amendment freedoms does not compel a state to nurture racially discriminatory political parties. Just the opposite is true.
In a long line of cases, the Supreme Court has construed the fourteenth and fifteenth amendments to prohibit a wide variety of devices designed to keep black citizens from participating in political parties and the election process.2 As the abolition of white primaries attests, the state, acting through political parties or political associations, cannot abridge the right of a citizen to vote on account of race or deny him the equal protection of the laws.3 While some of these cases involve the fourteenth amendment and others the fifteenth, the distinction is not critical to this appeal because both amendments bar discrimination that is tainted by state action. These cases demonstrate that careful scrutiny of the state’s involvement is demanded when the state aids political associations that "discriminate on racial grounds. They teach, albeit implicitly, that when state action is united with a political party or association that bars black people from full participation in its affairs, the union is illegal despite the first amendment rights possessed by white members of the organization. These cases provide no valid distinction between a political party which has enjoyed success and one that has not. To permit the Party to use the school auditorium now, but to refuse it access in the future when it achieves success is simply locking the barn door after the horse has been stolen.
*1022Political parties are not the only institutions that are required to exercise first amendment rights within a nondiscriminatory framework. For example, students and labor union members also possess freedom of speech and association.4 But the first amendment does not insulate schools and unions from observing the rights of racial minorities.5 Indeed, in Healy v. James, 408 U.S. 169, 183 n. 11, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972), upon which the Party primarily relies, Mr. Justice Powell was careful to note that the political organization which claimed first amendment rights did not dispute the college’s rule that it could not discriminate “on the basis of race, religion or nationality.”
Similarly, Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), provides the Party scant support. There the Court held that the first amendment did not prohibit'New Jersey from paying transportation costs of children attending parochial schools. Significantly, the Court did not hold — as the Party contends in the case before us — -that a state is compelled to furnish such transportation. Moreover, while the question is not free from doubt, it is possible that the state would have been prohibited from making the contribution if the schools had excluded pupils on the basis of race. Cf. Cooper v. Aaron, 358 U.S. 1, 17, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958); Poindexter v. Louisiana Financial Assistance Comm’n., 275 F.Supp. 834 (E.D.La.1967), aff’d, 389 U.S. 571, 88 S. Ct. 693, 19 L.Ed.2d 780 (1968); but cf. Norwood v. Harrison, 340 F.Supp. 1003 (N.D.Miss.1972), prob. juris, noted, 409 U.S. 839, 93 S.Ct. 68, 34 L.Ed.2d 79 (1972).
The Party also contends that its first amendment rights are paramount because rental of the school auditorium would not involve the state in promoting the Party’s racist policies. The Party insists that, tested by Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972), the rental of school property is innocuous. In Moose Lodge, the Court held that Pennsylvania’s grant of a liquor license to a private club did not sufficiently involve the state to bring the club’s racially discriminatory guest policies within the ambit of the fourteenth amendment. Moose Lodge, it is readily apparent, does not reach the claim on which the Party’s application for an injunction is based— that the first amendment requires the state to confer benefits on an organization despite its practice of racial discrimination. Moreover, the facts in Moose Lodge readily distinguish it from the case before us. The lodge, as the Court noted, is a private club; in contrast, the Party is a political organization open to all white persons who subscribe to its doctrines. The lodge conducted all of its activities in its own building on its own land; the Party, on the contrary, seeks to hold its meetings in a public building. Finally, Moose Lodge rests on the conclusion that the grant of a state liquor license cannot be said in any way to foster or encourage racial discrimination; a similar conclusion, however, cannot be reached here. As the Party’s charter indicates, it is dedicated to gaining national political power. The proof establishes beyond question that it desires to use county school property for various meetings, both public and private, to further its political aims.
Viewing these facts in their entirety, I conclude that the state aid which the Party seeks is legally significant and that its reliance on Moose Lodge is misplaced. Mr. Justice Rehnquist, the author of Moose Lodge, carefully distin*1023guished Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961), which is the leading case holding that rental of state property to a lessee that practices racial segregation constitutes illegal state action. In this case we deal with a political organization whose involvement with the state becomes an even more sensitive issue than that of the restaurant in Burton. If the Party’s rental applications are granted, the Party will enjoy the convenience of a modern public auditorium. Use of this facility could give the Party respectability derived from its official recognition as a responsible political organization. There can be no doubt that rental of school property would foster the racial practices that are fundamental to the Party’s existence. The fact that the Party, not the state, originated the discrimination is inconsequential. State involvement is prohibited when the state “in any way act[s] to . encourage racial segregation.” 6
Furthermore, at the risk of being repetitious, I emphasize that the School Board has chosen not to ally itself with the Party’s racial practices. Therefore, even if it were to be conceded that the fourteenth and fifteenth amendments permit the state to rent its property to a racially discriminatory political organization, the issue is not settled. The state’s power to prohibit racial discrimination is broader than the fourteenth amendment’s ban on discriminatory state action. See Railway Mail Ass’n v. Corsi, 326 U.S. 88, 98, 65 S.Ct. 1483, 89 L.Ed. 2072 (1945) (Frankfurter, J., concurring). There is no reason why this principle which pertains to labor unions whose members also possess first amendment rights should not be applied to political parties.
Less my dissent provoke misunderstanding, I repeat that it is based on the racially discriminatory practices of the Party, not its speeches. A political party’s rhetoric cannot be equated with its rules. Though politicians of every persuasion are entitled to freedom of speech and assembly, their exclusion of people from party membership on account of race is a tactic that has been expressly condemned by the Supreme Court.7 The Constitution’s requirement of unrestricted membership is calculated to encourage, not suppress, free discussion and association. By declaring that political parties must be open to all citizens, the Court has wisely assigned priority to the political rights secured by the fourteenth and fifteenth amendments. Experience has shown this primacy affords ample accommodation for first amendment rights, and I see no reason in this appeal to encroach upon it. The Party’s exclusion of black citizens from membership is the decisive step beyond advocacy that justified the district court’s dismissal of its complaint.
. The Board’s action should be judged on the facts then before it, not on the Party’s subsequent stipulation to the effect that it didn’t mean what it said. Despite its subsequent self-serving declaration that Jews and Negroes could have attended the meeting, the Party remains insistent that Negroes are barred from membership. Consequently, they can not attend the private meetings in the school that the opinion of the court authorizes.
. South Carolina v. Katzenbach, 383 U.S. 301, 311-312, 86 S.Ct. 803, 810, 15 L.Ed.2d 769 (1966), catalogs devices “designed to deprive Negroes of the right to vote” in violation of the fifteenth amendment :
“Grandfather clauses were invalidated in Guinn v. United States, 238 U.S. 347 [35 S.Ct. 926, 59 L.Ed. 1340], and Myers v. Anderson, 238 U.S. 368 [35 S.Ct. 932, 59 L.Ed. 1349], Procedural hurdles were struck down in Lane v. Wilson, 307 U.S. 268 [59 S.Ct. 872, 83 L.Ed. 1281], The white primary was outlawed in Smith v. Allwright, 321 U.S. 649 [64 S.Ct. 757, 88 L.Ed. 987], and Terry v. Adams, 345 U.S. 461 [73 S.Ct. 809, 97 L.Ed. 1152], Improper challenges were nullified in United States v. Thomas, 362 U.S. 58 [80 S.Ct. 612, 4 L.Ed.2d 535]. Racial gerrymandering was forbidden by Gomillion v. Lightfoot, 364 U.S. 339 [81 S.Ct. 25, 5 L.Ed.2d 110]. Finally, discriminatory application of voting tests was condemned in Schnell v. Davis, 336 U.S. 933 [69 S.Ct. 749, 93 L.Ed. 1093]; Alabama v. United States, 371 U.S. 37 [83 S.Ct. 145, 9 L.Ed.2d 112] ; and Louisiana v. United States, 380 U.S. 145 [85 S.Ct. 817, 13 L.Ed.2d 709].”
To these eases may be added Hadnott v. Amos, 394 U.S. 358, 89 S.Ct. 1101, 22 L.Ed.2d 336 (1969), which invoked the first, fourteenth, and fifteenth amendments to void discriminatory enforcement of a Corrupt Practices Act against Negro candidates.
The Court relied on the fourteenth amendment in holding that both a Texas state law prohibiting Negroes from voting in Democratic Party primaries, Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759 (1927), and rules of the State Executive Committee of the Democratic Party of Texas excluding Negroes from voting in the party’s primaries, Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984 (1932), were unconstitutional.
. Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953) ; Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed.2d 987 (1944) ; Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984 (1932) ; Baskin v. Brown, 174 F.2d 391 (4th Cir. 1949) ; Rice v. Elmore, 165 F. 2d 387 (4th Cir. 1947), cert. denied, 333 U.S. 875, 68 S.Ct. 905, 92 L.Ed. 1151 (1948).
. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) ; Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939).
. Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) ; Railway Mail Ass’n v. Corsi, 326 U.S. 88, 65 S.Ct. 1483, 89 L.Ed. 2072 (1945) ; United States v. International Longshoremen’s Ass’n, 460 F.2d 497 (4th Cir.), cert. denied, 409 U.S. 1007, 93 S.Ct. 439, 34 L.Ed.2d 300 (U.S. Nov. 14, 1972) (No. 72-360).
. Adickes v. S. H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605, 26 L.Ed.2d 142 (1969). See also Moose Lodge # 107 v. Irvis, 407 U.S. 163, 172, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972) ; Reitman v. Mulkey, 387 U.S. 369, 381, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1969) ; Robinson v. Florida, 378 U.S. 153, 156, 84 S.Ct. 1693, 12 L.Ed.2d 771 (1964) ; Anderson v. Martin, 375 U.S. 399, 404, 84 S.Ct. 454, 11 L.Ed.2d 430 (1963).
. See notes 2 and 3, supra.