Henderson v. Stalder

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 13, 2005

______________________________ Charles R. Fulbruge III
Clerk
No. 03-30699
______________________________

RUSSELL J. HENDERSON; ET AL.,

Plaintiffs,

DOREEN KEELER;
PLANNED PARENTHOOD OF LOUISIANA, INC.,

Plaintiffs - Appellees,

versus

RICHARD STALDER, ETC.; ET AL.,

Defendants
RICHARD STALDER, SECRETARY, DEPARTMENT OF PUBLIC SAFETY AND
CORRECTIONS; JOHN KENNEDY, STATE TREASURER,

Defendants-Appellants.

Appeal from the United States District Court
for the Eastern District of Louisiana
New Orleans Division
No. 00-CV-2237-K

Before JOLLY, JONES, and PRADO, Circuit Judges.

EDITH H. JONES, Circuit Judge:

This appeal concerns whether Louisiana’s prestige license

plate program facially discriminates against pro-choice views in

contravention of the First Amendment. The program diverts excess

charges over handling and ordinary registration fees for the plates

to organizations endorsed by the legislature. Because of this
feature of the program, we conclude that we lack jurisdiction over

the case because of the Tax Injunction Act, 28 U.S.C. § 1341.

I. BACKGROUND

A. The First Appeal

This case is on appeal for the second time. The

plaintiffs originally filed suit seeking to have LA. REV. STAT. ANN.

§ 47:461.61, which authorized the adoption of a “Choose Life”

prestige license plate, declared unconstitutional. The district

court found Louisiana’s prestige license plate program created a

forum for speech that was not viewpoint neutral, granted both

declaratory and injunctive relief, and certified the case for

interlocutory appellate review. See Henderson v. Stalder

(“Henderson I”), 112 F. Supp. 2d 589 (E.D. La. 2000).

On appeal, this court, sua sponte, concluded that the

plaintiffs lacked standing. See Henderson v. Stalder, 287 F.3d 374

(5th Cir. 2002). See also, Women’s Emergency Network v. Bush, 323

F.3d 937 (11th Cir. 2003) (rejecting challenge to Florida “Choose

Life” plate for lack of standing). The court thus “REVERSED,

VACATED, and REMANDED” the case “for an entry of dismissal.”

Henderson, 287 F.3d at 382. On petition for rehearing, however,

the court slightly amended its decision by issuing an order, which

reads in part: “The petition for rehearing is DENIED. The case is

remanded to the district court with instructions to dismiss the

case for lack of standing unless the plaintiff Keeler amends her

2
petition within a reasonable time to challenge the state’s overall

policy and practice of issuing specialty license plates.”

Henderson v. Stalder, 57 Fed. Appx. 213, 2003 WL 151183 (5th Cir.

Jan. 9, 2003) (unpublished order) (emphasis added). The district

court vacated the previous judgment and allowed Keeler to amend her

complaint.

B. Remand

The Third Amended Complaint named individuals Henderson,

Keeler, Loewy, and LaMothe, and organizations (National Council of

Jewish Women and Planned Parenthood of Louisiana) as plaintiffs,

and each attempted to establish standing. See Henderson v. Stalder

(“Henderson II”), 265 F. Supp. 2d 699, 707 (E.D. La. 2003).

Importantly, the Third Amended Complaint “raise[d] a First

Amendment facial challenge to the entire overall policy and

practice under which Louisiana makes available certain specially

designed license plates for the expression of certain views by

Louisiana vehicle owners.” Id. The Third Amended Complaint also

raised new Establishment Clause claims.

The defendants moved to dismiss on several grounds, and

the plaintiffs responded with a motion for partial summary judgment

contesting the constitutionality of the license plate program.

The district court first determined that the Fifth

Circuit’s mandate did not prevent each of the plaintiffs from

attempting to reassert standing. See id. at 708-09. Nevertheless,

3
the district court dismissed all the plaintiffs, save Keeler and

PPL, for lack of standing based on the reasoning the Fifth Circuit

provided. See id. at 709-10.1 As to Keeler, the court concluded

that she sufficiently amended her complaint to present a viable

facial challenge to the overall program. The district court also

concluded that the amendments to Keeler’s complaint cured the

redressability problems that were fatal to PPL’s funding claim.

Furthermore, the district court dispatched the defendants’ argument

that the Tax Injunction Act barred the challenge. See id. at 720

n.12.

On the merits of Keeler’s First Amendment claim, the

court again accepted Keeler’s argument that the license plate

program created a “forum” that permitted only some groups to

express their chosen viewpoint. Relying on the Fourth Circuit’s

decision in Sons of Confederate Veterans, Inc. v. Commissioner,

Virginia Dept. of Motor Vehicles (“SCV”), 288 F.3d 610 (4th Cir.

2002), reh’g en banc denied, 305 F.3d 241 (4th Cir. 2002), the

district court held that Louisiana’s prestige license plate program

effectuated unconstitutional viewpoint discrimination and enjoined

its enforcement.2 The court refused to stay the enforcement of its

ruling. This appeal ensued.

1
Plaintiffs Henderson, Loewy, LaMotte and the NCJW have not appealed
the district court’s dismissal of their claims.
2
PPL’s funding and Establishment Clause claims were therefore rendered
moot. See Henderson II, 265 F. Supp. 2d at 719.

4
 II. STANDARD OF REVIEW

We review the district court’s grant of summary judgment

de novo, applying the same standards as did the district court.

Hodges v. Delta Airlines, Inc., 44 F.3d 334, 335 (5th Cir. 1995)

(en banc).

III. DISCUSSION

The defendants raise three principal arguments on appeal:

(1) the district court exceeded the scope of its mandate by

allowing PPL to amend its claim; (2) the Tax Injunction Act bars

the suit in its entirety; and (3) the prestige license plate

program does not violate the First Amendment. For reasons that

will be obvious, we do not reach the merits of the case.

A. PPL’s Standing

The defendants rightly contend that the district court

exceeded the scope of this court’s mandate by permitting PPL to

seek to file a complaint on remand. “[T]he mandate rule compels

compliance on remand with the dictates of a superior court and

forecloses relitigation of issues expressly or impliedly decided by

the appellate court.” United States v. Lee, 358 F.3d 315, 321 (5th

Cir. 2004) (citing United States v. Bell, 988 F.2d 247, 251 (1st

Cir. 1993)).

The district court failed to abide by this rule. “Where,

as here, further proceedings in the district court are specified in

the mandate of the Court of Appeals, the district court is limited

5
to holding such as are directed.” Crowe v. Smith, 261 F.3d 558,

562 (5th Cir. 2001) (citations and quotations omitted). This

court’s order permitting Keeler to amend her complaint must be read

in light of the original decision in which the case was remanded

only for “entry of dismissal.” Henderson, 287 F.3d at 382. This

court narrowly altered that ruling on rehearing to permit Keeler to

add a facial challenge to the entire program — a claim that was

absent from her original complaint. This narrow amendment to the

Henderson ruling was not an invitation for Keeler to add new claims

or rationales for PPL’s standing. The appellate court might have

explored other avenues by which PPL could establish standing, and

might have included remand instructions to that end, but we did

neither. Judicial economy considerations — the district court’s

justification for its decision — are insufficient to overcome the

appellate court’s express ruling. PPL is therefore dismissed from

the suit.

B. Tax Injunction Act

The defendants next contend that the Tax Injunction Act

(“TIA”) bars Keeler’s First Amendment challenge to the prestige

license plate program. The TIA prohibits a federal court from

“enjoining, suspending or restraining the assessment, levy or

collection of any tax under State law where a plain, speedy and

efficient remedy may be had in the courts of such state.” 28

U.S.C. § 1341. Keeler’s goal in this suit, and the remedy ordered

6
by the district court, in fact enjoined the state’s collection of

revenue for its entire specialty license plate program. Neverthe-

less, the TIA would not deprive federal courts of jurisdiction if

(a) the “fees” charged by the state are not taxes for purposes of

TIA, or if (b) Hibbs v. Winn, __ U.S. __, 124 S.Ct. 2276 (2004) can

be read to encompass this suit. Although reasonable minds can

differ on both questions, we are persuaded that the additional

amounts that the state collects for specialty plates – above

handling and ordinary vehicle registration fees – are indeed taxes

rather than regulatory fees. Further, Hibbs’s interpretation of

the TIA does not contemplate or authorize a suit whose object is to

diminish the flow of state revenues. The TIA deprives the federal

courts of jurisdiction over Keeler’s claim.

A review of the program’s operation will illuminate

further discussion. Under Louisiana Law, the Secretary of the

Department of Public Safety and Corrections (“Secretary” and “DPS”)

is charged with the task of issuing license plates for private

passenger vehicles. See LA. REV. STAT. ANN. § 47:463(A)(3)(a). This

legislation also permits the Secretary to issue “special prestige

license plates” if the Legislature so authorizes and certain

administrative requirements are satisfied. Id. A few rudimentary

administrative requirements apply to all prestige plates.3

3
See, e.g., LA. REV. STAT. ANN. § 47:463(A)(3)(a) (“All prestige plates
issued after August 15, 1999 shall include a handling charge of three dollars and
fifty cents to offset the administrative costs of the department for the issuance
of such plates.”); LA. REV. STAT. ANN. § 47:463(A)(3)(b) (“No prestige plate shall

7
 Other varying preconditions are included in the specific

legislation authorizing the individual prestige license plates.

For instance, there are monetary differences. More than half of

the specialty plates are distributed in exchange for additional

charges above the handling charge, and in many cases, like that of

the “Choose Life” plates, the charges so collected are distributed

to organizations as determined by the legislature. See Henderson

I, 112 F. Supp. 2d at 592 (explaining that proceeds from “Choose

Life” plates will be distributed to organizations that counsel

women to place their children up for adoption). When such an

additional charge is required, however, the amount varies from

statute to statute. See, e.g., id. at § 47:463.8 (no fee); §

47:463.14 ($25 fee); § 47:463.20 (same fee as “the regular motor

vehicle registration license fee”). Moreover, the extra charge may

recur annually or may be a one-time charge. See, e.g., id. at §

47:463.8 (one-time charge); § 47:463.31 (annual charge). Second,

the moniker associated with the extra fee also varies. See, e.g.,

id. at § 47:463.33 (“fee”); § 47:463.31 (“royalty”); § 47:463.57

(“donation”). Finally, the allocation of the proceeds differs from

statute to statute. See, e.g., id. at § 47:463.8 (funds deposited

in state treasury); § 47:463.43 (funds directed to Louisiana

Environmental Education Fund); § 47:463.89 (funds directed to New

Orleans Recreation Department).

be established after January 1, 2002, until the department has received a minimum
of one thousand applications for such plate.”).

8
 Other distinctions less critical to this case exist among

the statutes authorizing specialty plates. The statutes differ in

the measure of editorial and aesthetic discretion afforded to the

recipients and the Secretary.4 Some, but not all, of the statutes

require that a minimum number of purchasers apply for the specialty

plates prior to their production. See, e.g., id. at § 47:463.13

(no minimum applicant requirement for special plates honoring

Congressional Medal of Honor recipients); § 47:463.58 (conditioning

the Life Center Full Gospel Baptist Cathedral plate on a minimum of

one thousand applicants); § 47:463.61 (conditioning the “Choose

Life” plate on a minimum of one hundred applicants). Finally,

beyond administrative and monetary distinctions, the statutes

mandate different eligibility criteria to obtain specialty plates.5

4
Louisiana appears to be deliberate about the measure of creative
discretion it delegates to the identified groups and how much it retains. The
legislature specifically adopted the “Choose Life” statement, allowing only
aesthetic decisions to the Choose Life Council. To well-established
organizations, the Legislature entrusts the design of the license plate, subject
to compliance with certain statutory standards. See, e.g., LA. REV. STAT. ANN. §
47:463.71 (“The license plate shall be of a color and design selected by the Boy
Scouts of America, provided that it is in compliance with R.S. 47:463(A)(3).”)
In other instances, the state imposes more restrictive instructions. See, e.g.,
id. at § 47:463.75 (“In addition, the plate shall bear the inscription ‘SONS OF
CONFEDERATE VETERANS’ and the logo of the Sons of Confederate Veterans. The
department shall approve any logo, symbol, or design before such plate is
produced.”). As for plates recognizing diffuse interests, Louisiana retains all
content-based discretion. See, e.g., id. at § 47:463.112 (“The secretary shall
design the plate [recognizing foster and adoptive parenting].”).
5
In some instances, eligibility is based on membership in a particular
association or participation in a seminal event. See, e.g., id. at § 47:463.7
(former prisoners of war of World War I, World War II, the Korean Conflict, and
the Vietnamese Conflict); § 47:463.13 (U.S. Reserve Forces); § 47:463.20 (Pearl
Harbor survivors); § 47:463.22 (Shriners); § 47:463.32 (Knights of Columbus).
Other plates express support for a particular institution or entity and therefore
do not require membership in a particular organization. See, e.g., id. at §
47.463.67 (“I Support River Region Cancer Center”); § 47:463.110 (“Support 4-H
Youth Development”). Still other plates allow citizens to express their support

9
 From Keeler’s standpoint, the first basis for sustaining

federal jurisdiction is that the additional charges Louisiana

citizens incur for specialty plates, above the handling charges and

ordinary vehicle registration taxes, are fees, not taxes, hence the

program is not covered by the TIA. The district court so held, in

part because the state statutes characterize the additional charges

for the specialty plates as fees. On the contrary, what is a “tax”

for purposes of the TIA is a question of federal law on which a

state’s legislative label has no bearing. Home Builders Ass’n of

Miss. Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 n.10 (5th

Cir. 1998). While this court has acknowledged that “distinguishing

a tax from a fee is often a difficult task,” id. at 1011, Judge

Wisdom distilled the following “workable distinctions” from the

caselaw:

The classic tax sustains the essential flow of revenue to
the government, while the classic fee is linked to some
regulatory scheme. The classic tax is imposed by a state
or municipal legislature, while the classic fee is
imposed by an agency upon those it regulates. The
classic tax is designed to provide a benefit for the
entire community, while the classic fee is designed to
raise money to help defray an agency’s regulatory
expenses.

Home Builders, id. (omitting internal citations). This court added

that a broad construction of “tax” is necessary to honor Congress’s

goals in promulgating the TIA, including that of preventing

for a certain cause or point of view. See, e.g., id. at § 47:463.40 (“Think Safe
Kids”); § 47:463.60 (“Animal Friendly”); § 463.61 (“Choose Life”); § 47:463.69
(“Don’t Litter Louisiana”); § 47:463.95 (“Unlocking Autism”).

10
federally-based delays in the collection of public revenues by

state and local governments. Id. (citing Tramel v. Schrader, 505

F.2d 1310, 1315-16 (5th Cir. 1975).

A few brief examples flesh out the distinction between a

TIA-covered tax and regulatory fees. In Hager v. City of West

Peoria, 84 F.3d 865 (7th Cir. 1996), the Seventh Circuit held that

graduated fees on the weight of truckloads had been legislated to

discourage heavy trucks from using a particular road and thus “were

passed to control certain activities, not to raise revenue.” 84

F.3d at 871. This court has, on the other hand, routinely

characterized local improvement assessments imposed on a selected

class of business as taxes, not fees, in line with the

understanding that a “tax” “embraces any extraction of property

from a private person by a sovereign for its use.” Tramel, 505

F.2d at 1315. Home Builders reaffirmed this characterization of an

impact fee ordinance, which was passed to enhance the provision of

municipal services in a rapidly growing city, deeming it a tax in

light of the broad public purpose to be served by the funds

collected under it. 143 F.3d at 1011-12.

Acknowledging this tax/fee distinction, Keeler relies on

Neinast v. Texas, 217 F.3d 275 (5th Cir. 2000), in which this court

found no TIA bar to adjudicating handicapped persons’ challenge to

a Texas statutory fee for obtaining handicapped parking placards.

Revenue obtained from the fee was paid into the state highway fund

for the purpose of defraying the cost of the handicapped placards.

11
217 F.3d at 278. The court characterized fees, exempt from the

TIA, as charges imposed “(1) by an agency, not the legislature;

(2) upon those it regulates, not the community as a whole; and

(3) for the purpose of defraying regulatory costs, not simply for

general revenue-raising purposes.” Id. While the first two

criteria tugged in opposite directions, the court held that the fee

was tagged “for the benefit of the program itself,” i.e., to

reimburse the costs of the placards. This fact served to

distinguish Home Builders. Further, responding to an argument of

the state, the court noted that “the question is not where the

money is deposited [in general revenue or segregated accounts], but

the purpose of the assessment.” Id.

Keeler advances three reasons, allegedly rooted in

Neinast, to support her contention that the specialty plate program

involves the payment of fees. First, she contends that because the

program is administered by the Motor Vehicle Unit of the Department

of Public Safety and Corrections, the fees are “charged” by a

regulatory agency. Second, the charges are imposed “only upon

those that the scheme regulates,” rather than upon the community as

a whole or even the entire vehicle-owning community. Third, she

asserts that the additional specialty plate fees are not simply

imposed for revenue-raising purposes but are earmarked for very

specific organizations and thus “defray the cost of moneys expended

to these special programs, which are not intended for the benefit

of the entire community.” These arguments are either logically

12
attenuated from the facts or inconsistent with our governing

caselaw.

First, the fees for Louisiana specialty plates are

directly set by the legislature, even though they are collected by

a state agency’s motor vehicle unit. Neinast concluded that an

analogous feature of the handicapped parking fees suggested a TIA-

covered tax.

Second, the fact that specialty plate charges are paid by

some, though not all, purchasers, much less all license plate

purchasers, is suggestive of Neinast, which held that the charge

for handicapped placards represented in this respect a fee rather

than a tax. On the other hand, this court has held that special

assessments imposed on a limited subgroup of the population, were

TIA “taxes” because their revenue was used for community improve-

ments. See Home Builders; Tramel. Thus, this factor, whether the

charges are imposed “only upon those that the scheme regulates,” is

ultimately interrelated with the purpose of the charge assessed

against a limited subgroup.

Finally, Keeler’s argument that specialty plate fees

cannot be taxes because they do not serve the general community

welfare, inasmuch as they are earmarked for special recipient

organizations, is unpersuasive. The fees in question exceed the

ordinary motor vehicle registration fees (which are based on a

vehicle’s value) and an additional handling charge; they are not

tied to vehicle regulation as such. As Neinast noted, the question

13
is not where the money is deposited, but the purpose of the

assessment. The Louisiana legislature decreed that the excess

charges would be used for a number of purposes, ranging from (but

not limited to) park development to university education to

adoption support. None of these purposes is “regulatory” as to the

specialty plate purchasers. Keeler’s view of the public benefit

served by these expenditures may differ from that of the Louisiana

legislature, but it does not transform the additional charges for

specialty plates into fees designated for a “regulatory” purpose.

The district court emphasized two features of the

specialty plate program in concluding that the additional charges

(above the handling fee and registration tax) are fees rather than

taxes. The additional charges, it pointed out, are paid volun-

tarily by vehicle owners, whereas taxes are normally considered

involuntary charges. Further, the charges are not imposed

uniformly even among purchasers of specialty plates. The court

inferred from the inconsistency of the policy that the legislature

was benefitting only a few groups rather than the community at

large. Both points merit discussion.

The voluntariness of the vehicle owner’s payment consti-

tutes, in our view, at most a superficial distinction for purposes

of the TIA. Voluntariness is an overinclusive term in this

context: Any party who pays special assessments to the government

does so “voluntarily” in order to engage in particular activity,

whether that activity is homebuilding, engaging in a regulated

14
industry, or obtaining permission to park in handicapped spots.

The same can be said of purchasing a “Choose Life” or “Knights of

Columbus” or any other specialty license plate logo. A taxpayer

“voluntarily” pays the state’s ordinary vehicle registration tax

for the privilege of legally owning a car, yet that charge is

indisputably a tax. It is thus not the taxpayer’s motivation but

the government’s purpose in exacting the charge (here, the

additional amount above the handling cost and ordinary vehicle

registration tax) that distinguishes taxes from non-TIA-covered

regulatory fees.

The variability of the additional charges among

purchasers of specialty plates caused the district court to

conclude that in many instances, the state is acting as a “collec-

tion agency for private charities.” 281 F. Supp. 2d at 874. The

court deduced that such variable charges cannot “benefit the entire

community” because they “are linked to some regulatory scheme — if

not a charitable scheme.” Id. While these features of the

specialty plate program — the variations in charges and use of the

funds collected — set it apart from more traditional funding

mechanisms, however, they do not render the charges equivalent to

regulatory fees outside the TIA. The additional charges “regulate”

nothing; they defray no costs of the program itself, as those costs

are embodied in the separate, minimal handling fee. That the

charges vary among different specialty plates and are distributed

in different ways constitute, in our view, legitimate exercises of

15
legislative line-drawing. Moreover, the distribution of some of

the funds to private sources simply indicates the legislature’s

determination to “outsource” certain activities. A dominant

feature of the program, evidenced in over half of the provisions

authorizing specialty license plates, is to raise revenue. Given

the TIA’s broad purpose to prevent federal courts from interfering

with challenges to state and local revenue-raising measures, and

the correspondingly narrow and focused exception that has been

carved out for regulatory fees that defray the costs of a particu-

lar regulatory regime, we are unwilling to mischaracterize the

Louisiana legislature’s appropriations measures as “fees” in order

to achieve federal jurisdiction.

To fulfill the purposes of the Tax Injunction Act, and

because the specialty plate charges cannot under these facts

constitute regulatory fees, we are persuaded that the additional

charges for specialty plates must be characterized as taxes.

Even though the specialty plate charges may be considered

taxes within the scope of TIA, the federal courts may entertain

Keeler’s suit if it falls within the Supreme Court’s recent

discussion of the TIA in Hibbs. There, the Supreme Court

confronted an Establishment Clause challenge to an Arizona statute

that authorized “income-tax credits for payments to organizations

that award educational scholarships and tuition grants to children

attending private schools.” 124 S.Ct. at 2281. The plaintiffs,

who did not avail themselves of the tax credits, sought to enjoin

16
the statute’s operation. Focusing on the status of the plaintiffs

and the relief sought, the Court concluded that the TIA applies

only where the “state taxpayers seek federal court orders enabling

them to avoid paying state taxes.” Id. at 2289 (emphasis added).

Hibbs addressed “the question whether the [TIA] was intended to

insulate tax laws from constitutional challenge in lower federal

courts even when the suit would have no negative impact on tax

collection.” Because the plaintiffs there were attacking a tax

credit, and the impact of their suit would overturn the credit,

thus restoring money to the state treasury, the Court held Section

1341 was not intended “to stop third parties from pursuing consti-

tutional challenges to tax benefits in a federal forum.” Id. at

2290. Hibbs opened the federal courthouse doors slightly notwith-

standing the limits of the TIA, but it did so only where (1) a

third party (not the taxpayer) files suit, and (2) the suit’s

success will enrich, not deplete, the government entity’s coffers.

See id. at 2888-90.6

Keeler’s First Amendment attack on Louisiana’s prestige

license plate program satisfies only the first part of Hibbs. Her

success, however, flies in the face of Hibbs’s second prong: in

enjoining the program’s operation, Keeler’s judgment has placed the

federal courts in the position of reducing state tax revenues.

6
See Harvard Law Review, The Supreme Court, 2003 Term - Leading Cases:
Tax Injunction Act, 118 Harv. L. Rev. 486, 489-90 (2004); Martin A. Schwartz,
Challenging The Constitutionality Of State Tax Policies In Federal Court,
N.Y.L.J., Oct. 19, 2004, at 3.

17
Hibbs affords no support for Keeler’s demand to eliminate the

revenues generated by the specialty plate program.

As a footnote to this discussion, we observe our

disagreement that the injunction obtained by Keeler is constitu-

tionally appropriate. On the contrary, in other cases in which a

plaintiff has objected to her exclusion from a state-sponsored

forum, the Supreme Court’s remedy has not been to close down the

forum and censor the speech of others, but to approve injunctions

opening up the forum to the plaintiff.7 Had Keeler sought such

forum-opening relief, and had she succeeded on the merits (a

hypothetical exercise on this record), the proper relief would have

entailed an increase of state revenues and would not conflict with

Hibbs or the TIA. We are bound, however, by Keeler’s tactical

choice and the district court’s actual remedy.

For the foregoing reasons, the Tax Injunction Act applies

to Keeler’s challenge to the Louisiana specialty plate program, and

federal courts have no jurisdiction to entertain it. The judgment

7
See, e.g., Rosenberger v. Rector and Visitors of Univ. of Virginia,
515 U.S. 819, 115 S. Ct. 2510 (1995) (university student organization brought an
injunction action against a university challenging denial of funds); Perry Educ.
Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 103 S. Ct. 948 (1983) (union
and members brought action seeking injunction permitting access to a school
board’s internal mail system); Widmar v. Vincent, 454 U.S. 263, 102 S. Ct. 269
(1981) (holding that a public university may not prohibit a recognized student
group from using school facilities for religious worship services or teaching);
Police Dept. of City of Chicago v. Mosley, 408 U.S. 92, 92 S. Ct. 2286 (1972)
(striking as discriminatory a city ordinance prohibiting all picketing within one
hundred-fifty feet of a school, except peaceful picketing of any school involved
in a labor dispute).

18
is accordingly VACATED and the case is REMANDED WITH INSTRUCTIONS

TO DISMISS.

VACATED; REMANDED WITH INSTRUCTIONS TO DISMISS.

19