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Case Document
March 30, 2001

HSLDA's Reply Brief in Support of Summary Judgment for Plaintiffs


        LYDIA GOULART, et al.,



        PAUL D. MEADOWS, et al.,



No. PJM00CV286












    1. The Plaintiffs Engage In Protected First Amendment Expression

    2. Public Forum Doctrine Prohibits the County from Excluding Plaintiffs

        Defendants Ignore the Relevant Fourth Circuit Precedent

        The Majority of Circuits Scrutinize Policies of Exclusion

        Defendants Abuse the Concept of Governmental Intent

        The County Is Wrong to Rely on Disputed Second Circuit Decisions

    3. A Community Center Is More Like a Traditional Public Forum Than a Nonpublic Forum


    1. Discrimination on the Basis of Status

    2. The Presence of a Less Restrictive Means Casts "Considerable Doubt" on the Government's Interest

    3. Private Educators Have Been Subject to Active Discrimination for Generations




AIDS Action Committee of Massachusetts, Inc. v. Mass. Bay Transp. Authority,
    42 F.3d 1 (1st Cir. 1994)

Arkansas Educational TV Commission v. Forbes,
    523 U.S. 666 (1998)

Board of Education of the Westside Community Schools v. Mergens,
    496 U.S. 226 (1990)

Bronx Household of Faith v. Community School District No. 10,
    127 F.2d 207 (2d Cir. 1997)

City of Cleburne v. Cleburne Living Center,
    473 U.S. 432 (1985)

Concerned Women for America v. Lafayette County and Oxford, Mississippi Public Library,
    883 F.2d 32 (5th Cir. 1989)

Cornelius v. NAACP Legal Defense and Education Fund,
    473 U.S. 788 (1985)

Fairfax Covenant Church v. Fairfax County School Bd.,
    17 F.3d 703 (4th Cir. 1994)

Full Gospel Tabernacle v. Community School District No. 27,
    979 F. Supp. 214 (S.D.N.Y. 1997), aff'd, 164 F.3d 829 (2d Cir. 1998)

Good News Club v. Milford Central School,
    202 F.3d 502 (2d Cir. 2000)

Grace Bible Fellowship v. Maine School Administrative District No. 5,
    941 F.2d 45 (1st Cir. 1991)

Gregoire v. Centennial School District,
    907 F.2d 1366 (3rd Cir. 1990)

Kotterman v. Killian,
    193 Ariz. 273, 972 P.2d 606 (1999)

Meyer v. Nebraska,
    262 U.S. 390 (1923)

Mitchell v. Helms,
    530 U.S. 793 (2000)

Palmore v. Sidoti,
    466 U.S. 429 (1984)

Perry Ed. Assn. v. Perry Local Educators' Ass'n,
    460 U.S. 37 (1983).

Pierce v. Society of Sisters,
    268 U.S. 510 (1925)

Putnam Pit, Inc. v. City of Cookeville,
    221 F.3d 834 (6th Cir. 2000)

Roberts v. U.S. Jaycees,
    468 U.S. 609 (1984)

Stewart v. District of Columbia Armory,
    863 F.2d 1013 (D.C. Cir. 1988)

Thomasson v. Perry,
    80 F.3d 915 (1996)

United States Dep't of Agriculture v. Moreno,
    413 U.S. 528 (1973)

Warren v. Fairfax County,
    169 F.3d 190 (4th Cir. 1999)

Warren v. Fairfax County,
    196 F.3d 186 (4th Cir. 1999) (en banc)

Widmar v. Vincent,
    454 U.S. 263 (1981)


COMAR § 13A.05.09.03(4)(f) 12


Unleashing the Limited Public Forum: A Modest Revision to a Dysfunctional Doctrine,
    52 Stan. L. Rev. 929 (2000) 23


Defendants have simplified this case considerably by clarifying that they consistently and intentionally exclude all private educators (home and private schoolers) from using any Calvert County community center ("Centers") for the purpose of educational instruction of children that could be used to meet state compulsory attendance requirements. At the time this suit was filed, this policy had never been formally adopted by the Calvert County Board of Commissioners [hereafter, the "County"]. In fact, Plaintiffs' discovery suggests that this policy of exclusion had never been written down in any one place until this lawsuit.

Defendants offer two reasons for their policy of exclusion. The first is that use of the Centers for educational purposes might conflict with recreational uses in one way or another, especially if the educational use turned out to be permanent or if the educational group demanded more and more time or space. This problem is addressed by the "Frequency of Use" provision of the Community Center Use Policy, which limits the degree to which any person or group may use the facility:


    1. Time Limitations - Generally usage is limited to a two hour time period. Parks and Recreation shall regulate meeting length and allocate space in a manner which maximizes use of the facility.

    2. Length of Agreement - Groups utilizing rooms for regular meetings are limited to a one year period. After one year the space shall be offered to the general public on a lottery system. If no other group requests the space the current user will have the opportunity to utilize the space.

    3. Frequency of Use - Groups utilizing rooms are limited to one meeting per week.

These Frequency of Use provisions are written, published, and open to all, unlike the unwritten policy of exclusion that triggered this suit. The Frequency of Use provisions apply to all users of the Center, not just to private educators engaged in educational activities. Upon information and belief, the Frequency of Use provisions appear to have been adopted by the County in an open meeting in full compliance with Maryland law. Plaintiffs concede that these are reasonable time, place, and manner restrictions which raise no constitutional concerns, but which also have no effect on Plaintiffs. Plaintiffs have never sought to use the Centers for more than two hours at a time or for more than one meeting per week. Although Defendants repeatedly makes mentions of frequency of use concerns, the County has not offered any evidence of any sort to suggest that these concerns are not already completely addressed by the written Frequency of Use provisions. If the original written Frequency of Use policy had barred Plaintiffs' requests, the County never would have had to resort to its unwritten policy of exclusion.

The written Frequency of Use provisions eliminates any real likelihood that private educators might "take over" the Centers, but they do not address the County's second problem. The second concern, and the one that is really at issue in this case, is something the County consistently refers to this as duplication of services:

We do not want to devote space in the centers for educational activities associated with meeting the State requirements for elementary or secondary education. We are meeting those needs through our funding of the Calvert County Board of Education. We believe that allowing the centers to be used for formal education would amount to duplication of services.

The County never explains exactly what "duplication of services" is, or why it is a problem. The County says, "Plaintiffs admit that the 'clubs' they applied to hold at Northeast community center were classes intended to satisfy state educational requirements for their children and were intended to be claimed as such on their children's portfolios." The County's position seems to be that classes like these "duplicate services." Not all classes "duplicate services," however, for there are many classes at the Centers which home schoolers are welcome to take and which they are welcome to list on their educational portfolios:

Private, independent, and home schooled children are welcome to participate in activities at Calvert County community centers. Moreover, private school, independent school, and home schooled children may claim school credits for their participation in those activities.

According to Defendants' own Brief, private and home school students are welcome to participate in and claim physical education credit for taking a "dancersize" class or any other recreational class offered by the County. What home schoolers may not do is offer "dancersize" (or any other recreational class) that might be listed on their own home school portfolio. Defendants distinguish these two cases as follows:

Put simply, the first example comports with the community centers' purpose of providing recreation for the community, while the second example commandeers the community centers as private school facilities and, thus, contravenes the purposes of the community centers and duplicates educational funding provided to the public schools.

Despite the County's use of the term "commandeering," no evidence has been submitted to this Court to support the County's insinuation that private educators desire to exclude the general public from the educational activities they wish to sponsor at the Centers. In fact, the available evidence suggests the opposite:

The one fact that can be discerned from both Mrs. Travers' and Ms. Johnson's versions of that conversation is that the Fiber Arts Club was to be held during the day and that therefore, in all practicality, it was open only to home schooled children even though Ms. Travers claimed that others were welcome to attend.

Under the current policy, every private educator is prohibited from offering educational activities, and only private educators are prohibited from offering educational activities. The County, in its own words, is worried about "sending the wrong message" to the School Board. Defendant Meadows' says:

Finally, the County makes a tremendous financial contribution to the Board of Education and parks and Recreation has a very close working relationship with the board of Education. Allowing a private, non-accredited school to operate in our facility sends the wrong message to the Board of Education.

Defendant Meadows explained his thinking at his deposition:

    Q: What was the wrong message that you thought would be sent?

    A: Well, essentially that - I know there's a lot of - it's budget time. There's a lot of animosity at times between the Board of Education and the Board of County Commissioners when it comes to funding. And the Board of Education never gets as much funding from the Board of County Commissioners that it would like to have for the education.

    I guess in my head, on the one hand the Board is - the Board of County Commissioners is giving the Board of Education X amount of money to work with and then turns around on the other side and kind of says now we're not going to give you the extra couple hundred thousand that you wanted, whatever, but oh, by the way, we'll give another educational organization a facility to operate in.

The Centers are intended for "meetings." Defendants seem surprised to discover, however, that "Plaintiffs assert that the geography club and fiber arts club for which the Plaintiffs sought to utilize the community centers constituted 'meetings.'" Plaintiffs had not considered this a debatable point, since it is the nature of "clubs" to "meet" for group activities, and since so many other educational activities seem to fit the County's notion of a "meeting." Previous "meetings" which were approved by the County included:

  • classes teaching English to non-English speaking people sponsored by the Lusby Prayer Group (application to use Southern Community Center for October 12, 1999 to Dec. 1999, Plaintiffs' Opening Brief, App. at 28)

  • course in magnets and ceramic technology offered by an individual (application of Marg Posey dated Nov. 24, 1998 for use of Southern Community Center; Paul Meadows depo., p 82, lines 10-22, Plaintiffs' Opening Brief, App. at 25)

  • Patuxent River Sail and Power Squadron instruction in vessel safety (application of Kay Sinkins dated April 28, 2000 for use of Southern Community Center, Plaintiffs' Opening Brief, App. at 26)

  • workshop on music teaching techniques sponsored by the Music Teachers Association of Southern Maryland. (Application of Mary Stevens dated Aug. 10, 1999 for use of the Southern Community Center; Paul Meadows depo., p 83, lines 14-19, Plaintiffs' Opening Brief, App. at 27)

  • skin care and nail care class (application of Linda Gibbs to use the Southern Community Center dated June 15, 1999, Plaintiffs' Opening Brief, App. at 28)

  • class teaching baton twirling (application of David Stanberg dated Feb. 23, 2000 to use the Southern Community Center for "baton twirling lessons with instruction;" Dep. of Paul Meadows at 84, lines 1-9, Plaintiffs' Opening Brief, App. at 29)

  • violin lessons offered by an individual (application of Frank Naducci dated June 7, 1999 to use the Southern Community Center, Plaintiffs' Opening Brief, App. at 31)

  • The Literacy Council teaches people to read at the community centers (Paul Meadows Dep. at 38, lines 1-11; applications to use the Southern Community Center, Plaintiffs' Opening Brief, App. at 1)

  • theater and drama instruction for youth ages 9-16, sponsored by the Chesapeake Youth Players. (Application to use Northeastern Community Center, Sept. 8, 2000; Dep. of Paul Meadows at 68, lines 14-18, Plaintiffs' Opening Brief, App. at 1)

  • CPR training and first aid training by a private concrete company for and another CPR class put on by a different individual (Application of Durkins Supply and Concrete to use Mt. Hope Community Center for Feb. 12 and 19, 2000 and application of Robert Huard to use Mt. Hope Community Center for Jan. 22, 2000, Plaintiffs' Opening Brief, App. at 34)

  • U.S. Census Bureau training for personnel to conduct the 2000 census (application by U.S. Census Bureau to use the Southern Community Center dated Feb. 16, 2000, Plaintiffs' Opening Brief, App. at 35)

  • Tutoring children who could not be taught at a public school or at home (Paul Meadows Dep. at 35, lines 11 to p. 36, line 19, Plaintiffs' Opening Brief, App. at 1. This is conducted by the teachers from the Calvert County school district. Id.)

    The Centers are also routinely used for the kinds of educational activities that already take place in the public schools and public libraries of the County. The Division of Parks and Recreation offers math tutoring, sewing, sign language for the deaf, drawing, Russian language, guitar, oil painting, and many other courses. These are all "meetings."

    Plaintiffs sought to use the Center for purposes that are objectively similar to these. Lydia Goulart submitted an application for use of the Northeastern Community Center for a geography club. She wrote that "the kids would be learning geography, playing games about geography." Mrs. Goulart planned to be one of the teachers for the club. Mrs. Goulart testified that at the geography club meetings, "[w]e would be looking at maps, answering questions, teaching geography."

    Mrs. Kyle Travers also wanted to engage in instruction and discussion in her fiber arts club which the County refused to allow to meet because it would advance the students' home education programs. Mrs. Travers testified that the fiber arts club would include instruction, such as someone appearing in front of the group to demonstrate some technique. Mrs. Travers described the activities of the club to include "[i]nstructions as to how to do certain things, knitting, crocheting, tadding, patterns to follows," with some instruction coming from written materials distributed to the attendees.

    The County simply cannot explain why teaching someone to twirl a baton or administer CPR is a meeting while teaching a child about geography or how to make a quilt is not.



    The County does not have a legitimate interest in preventing private educators from competing with the public schools. What the County calls "duplication of services" is nothing more nor less than competition with the County's own school system.

    The government may have a legitimate interest in making sure the public sector does not duplicate government programs, but it does not have an interest in keeping the private sector from competing with government services. The State provides food stamps, but that does not give the State a legitimate interest in restricting church soup kitchens. "Duplication of services" is a good thing when private parties offer valuable services for free, as the Plaintiffs want to do in this case. Unfortunately, the County seems to think of this as undesirable private competition with the public schools.

    To the best of Plaintiffs' knowledge, no federal court has ever held that a government has a legitimate interest in preventing private entities from competing with a government program. The burden is therefore upon the County to show any precedent that supports the proposition that governments may lawfully discriminate against citizens simply because they are private educators who compete with public schools.


    A. The Plaintiffs Engage In Protected First Amendment Expression

    The County has refused to allow the plaintiffs to engage in expression protected by the First Amendment. The County opens its brief with the extreme argument that parents teaching children geography and knitting are not expressive activities. The County argues that the home schooling plaintiffs "have failed in any pleading submitted to this Court to articulate or identify any expressive activities, any view or information to be communicated, or any particularized message that they intended to convey."

    This is a novel argument. It is noteworthy that the County offers zero precedents for the proposition that classes are not "speech." This is troubling, since the courts have routinely construed "speech" broadly, for First Amendment purposes. Panhandling may be speech, flag burning may be speech, erotic dancing may be speech, but home school classes apparently are not. Under the County's theory of the law, pornography is protected by the First Amendment, but geography is not.

    The Supreme Court disagrees. That Court has held that teaching and reading are expressive activities protected by the First Amendment. Widmar v. Vincent, 454 U.S. 263, 270, n. 6 (1981). Justice Sandra Day O'Connor, in her concurrence in Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) stated that "instruction of the young" is "protected expression."

    It is easy enough to identify expressive words or conduct that are strident, contentious, or divisive, but protected expression may also take the form of quiet persuasion, inculcation of traditional values, instruction of the young, and community service. Cf. Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923).

    Roberts, 468 U.S. at 636 [emphasis added].

    Although the plaintiffs' expression may not have the importance or drama of a presidential speech or a political debate, their intended actions are nevertheless expressions protected by the First Amendment.

    B. Public Forum Doctrine Prohibits the County from Excluding Plaintiffs

    Defendants Ignore the Relevant Fourth Circuit Precedent

    The County insists that the Center is a "limited" public forum, not a "designated public forum," because it did not intentionally allow anyone to say anything at the Center. Then, for all practical purposes in this case, Defendants reduce a "limited public forum" to a "nonpublic forum." "[A] limited public forum is indistinguishable analytically from a nonpublic forum." Thus, simply by excluding the Plaintiffs, the County forecloses the possibility of any judicial review of its actions.

    The County's theory of the law stands in sharp contrast to that of most federal circuits, including this one. The Sixth Circuit recently reviewed this area of law and explained the differences between the different courts:

    These are the three categories of fora presently recognized in this circuit. We note, however, that there has been some uncertainty among the circuits as to whether there are one or two categories of fora other than "public" and "nonpublic," and what protection is due to these categories. Some courts have analyzed separate categories of "designated" and "limited" public fora, while others have found only one other category. See, e.g., The Good News Club v. Milford Centr. Sch., 202 F.3d 502, 508-09 (2d Cir. 2000) (drawing no distinction between designated and limited public fora, and stating that restrictions on these limited public fora must be "reasonable and viewpoint neutral"); Whiteland Woods, L.P. v. Township of W. Whiteland, 193 F.3d 177, 182 n.2 (3d Cir. 1999) (stating that the designated forum is a nontraditional forum opened for "public discourse," but that the Court has also "discussed 'limited' public fora, which are designated for expression, but only on limited topics," and choosing to treat both categories under the stricter standards for designated public fora); Warren v. Fairfax County, 196 F.3d 186, 193-94 (4th Cir. 1999) (en banc) (treating designated and limited public fora as the same category, and setting up two standards for this forum - an "internal" standard, which gives strict scrutiny protection for the class of speakers to whom the forum was opened and an "external" standard, which "places restrictions on the government's ability to designate the class for whose especial benefit the forum has been opened"); DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ., 196 F.3d 958, 964-65 (9th Cir. 1999) (distinguishing between a designated public forum, which is a nontraditional forum intentionally opened for public discourse that receives the same First Amendment protection as a traditional public forum, and a limited public forum, which is "a type of nonpublic forum that the government intentionally has opened to certain groups or to certain topics," but noting that the contours of these fora have not been clearly defined by the Court).

    Putnam Pit, Inc. v. City of Cookeville, 221 F.3d 834, 842 n. 5 (6th Cir. 2000) (holding that a city's web site is a nonpublic forum).

    The County pays lip service to the Fourth Circuit's recent decision in Warren v. Fairfax County, 196 F.3d 186, 193-94 (4th Cir. 1999) (en banc) without making any effort either to understand or apply it. Both the facts and procedural history of Warren are worth examining closely in this case.

    Rita Warren, a resident of Fairfax City, wanted to put up a religious holiday display on the "mall" in front of the Fairfax County Government Center Complex. The County allowed County residents to set up displays on this space, which the court described as a "landscaped median strip," but prohibited nonresidents from doing so. Mrs. Warren was not a resident of Fairfax County because, although Fairfax City is surrounded on all sides by Fairfax County, under Virginia law it is a separate jurisdiction. Mrs. Warren was therefore denied permission to use the space.

    The trial court ruled that the mall was a "limited public forum" as opposed to a "designated public forum." The court concluded that it was both reasonable and viewpoint-neutral to limit access to County residents, and therefore upheld the government's exclusion of the holiday display.

    On appeal, a divided panel of the Fourth Circuit affirmed. Judge Murnahan dissented, and the Fourth Circuit, en banc, reversed the previous ruling and adopted Parts II and III of Judge Murnahan's dissent as the opinion of the court. Since the court concluded that the "landscaped median strip" was a "traditional" public forum, the court had no need to discuss the further issues addressed in Part IV of Judge Murnahan's dissent. This case, however, presents exactly the issues that Judge Murnahan analyzed so carefully in Warren.

    Judge Murnahan explained that "reasonableness," for the purposes of public forum analysis, is not merely "rational basis review" as it is applied outside the First Amendment context:

    The reasonableness required in the nonpublic forum setting is not merely a rational basis standard. "[I]t is not enough simply to establish that the regulation is rationally related to a legitimate governmental objective ... for this regulation affect protected First Amendment activity that is entitled to special solicitude even in [a] nonpublic forum."

    Warren v. Fairfax County, 169 F.3d 190, 205 (Murnahan, J., dissenting), quoting Multimedia Publishing Co. v. Greenville-Spartanburg Airport Dist., 991 F.2d 154, 159 (4th Cir. 1993).

    A "reasonable" limitation of a public forum must be "reasonable in light of the objective purposes of the forum." Id. Judge Murnahan argues that a holiday display by a non-resident is not inconsistent with the objective use and purpose of the mall. He particularly noted that the county did not save any money by restricting access to county residents. Id., at 206. He rejected the notion that the County could reasonably "ration" the use of the available space: "This is not rationing, it is rationalization." Id.

    Judge Murnahan emphasized that access to the mall was made purely on the basis of "non-ministerial judgments." "The decisive difference between a limited public forum and a nonpublic forum recently delineated by the Supreme Court is whether access to the forum is available on a general or a selective basis." Id, at 205. Plaintiffs submit that Calvert County is no more selective in allocating space in its Community Centers than Fairfax County was in granting permits to use its mall. We are unaware of any evidence to suggest that the Defendants engage in any sort of value-judgments as to who may or may not hold a meeting in their Centers.

    The Majority of Circuits Scrutinize Policies of Exclusion

    Courts must note the difference between a forum that is only available for one kind of expression and a forum that is generally available for everybody else's expression of that kind except for the plaintiff's version. Judicial alarm bells should go off whenever a policy of inclusion turns into a policy of exclusion. The Supreme Courts and most other circuits insist on real scrutiny whenever a policy allows speech in general "except for" the plaintiff's speech.

    In Board of Education of the Westside Community Schools v. Mergens, 496 U.S. 226 (1990), for example, the Supreme Court warned against governmental manipulation of public forum terminology to exclude disfavored groups:

    A public secondary school cannot simply declare that it maintains a closed forum and then discriminate against a particular student group on the basis of the content of the speech of that group.

    Mergens, 496 U.S. at 245.

    The First Circuit scrutinizes "except for" policies. That court has observed that the Supreme Court "has indicated that it will not infer an intent not to designate a public forum solely from the fact that the government excluded certain speech or speakers in the case before it." AIDS Action Committee of Massachusetts, Inc. v. Mass. Bay Transp. Authority, 42 F.3d 1, 9 (1st Cir. 1994) [emphasis supplied]; see also Stewart v. District of Columbia Armory, 863 F.2d 1013, 1017 (D.C. Cir. 1988) ("[T]he very fact that the government has restricted speech in the matter challenged in a forum case does not of its own weight demonstrate that the government did not intend to designate a public forum").

    In Grace Bible Fellowship v. Maine School Administrative District No. 5, 941 F.2d 45 (1st Cir. 1991), the First Circuit found that the Maine school district had created a public forum when it opened its buildings for meetings by youth groups, community civic and service organizations, government agencies, educational programs, and cultural events. A policy that permitted speech in general-but not religious speech-was ruled unconstitutional.

    The Third Circuit is skeptical of "except for" policies. That court rightly stated that courts must independently evaluate the government's policy and practice to determine what kind of forum the government has created, and not focus solely on the government's statements about its intent. Gregoire v. Centennial School District, 907 F.2d 1366 (3rd Cir. 1990). To do otherwise would gut First Amendment protections for groups excluded from a public forum:

    To allow, as would the dissent, the government's statements of intent to end rather than to begin the inquiry into the character of the of the forum would effectively eviscerate the public forum doctrine; the scope of first amendment rights would be determined by the government rather than by the Constitution.

    Gregoire, 907 F.2d at 1374.

    In Fairfax Covenant Church v. Fairfax County School Bd., 17 F.3d 703 (4th Cir. 1994), the Fourth Circuit ruled that a school district had created a public forum when its policy opened its facilities to cultural, civic and educational groups, as well as political entities. The Fourth Circuit declared unconstitutional the school district's policies that required churches to pay more rent than nonreligious groups to meet the school facilities. A policy that provided low-cost rents to all non-profits except for churches failed to pass the constitutional test.

    The Fifth Circuit has little tolerance for "except for" policies. In Concerned Women for America v. Lafayette County and Oxford, Mississippi Public Library, 883 F.2d 32 (5th Cir. 1989), the Fifth Circuit ruled that the public library had established a public forum with a policy permitting meetings of a civic, cultural or educational character. It then declared unconstitutional the library's exclusion of a woman's prayer group from the library's public forum in its auditorium. Id. at 34.

    All these circuits apply a higher level of scrutiny when a forum is open to speech in general "except for" the plaintiff's speech. This should be especially true when the policy in question is both post hoc and unwritten. The County's policy of exclusion cannot survive any real review by this Court. We therefore urge this Court to grant summary judgment to Plaintiffs.

    Defendants Abuse the Concept of Governmental Intent

    The County defends its "except for" policy on the basis of its subjective intent to exclude. The County insists it has demonstrated its intent to operate a "limited forum" instead of a "designated forum." But the courts judge the constitutionality of an exclusion from a forum by first looking at who the policy allows to meet. The Supreme Court has rejected this misuse of "intent," and instructed lower courts not to take at face value the government's assertions about its intent, but instead look at whether the government created a public forum by "policy or practice," Cornelius v. NAACP Legal Defense and Education Fund, 473 U.S. 788, 802 (1985). If by policy and practice a County has opened the forum broadly, then a court judges any exclusions by the compelling state interest test. "[Where] the State has opened a forum for direct citizen involvement," exclusions bear a heavy burden of justification," Widmar, 454 U.S. at 273-74, quoting Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 555-559 (1975).

    The County obviously intended to allow a significant number of community groups to meet in its Community Centers, because the Community Center Use Policy permits a broad array of expressive activities. The policy states that the County established the centers "to afford its citizens a place to participate in activities which benefit the community as a whole," by providing "a meeting place for community organizations" and "a place for large community events." This is not a policy showing restrictive, limited access to its forum. By deliberating about this policy and enacting it, the County commissioners evinced a clear intent to open the community centers broadly for expressive activities. Therefore, the County cannot assert a self-serving assessment of its own "intent" to nullify the clear language of the policy and the practice of allowing a wide range of private speakers to use the facilities.

    Second, the County's incredible legal position seems to be that if it "intends" to create a closed forum, then this Court can look no further and must rule in favor of the County, no matter how broad its actual policy is and no matter how many groups the County actually permits to use its facilities. By clever manipulation of the "intent" issue, counties can exclude any group they don't like, by labeling their forums as "nonpublic forums." "If we clearly intent to keep you out, then you are out," is their logic. The County's argument evades First Amendment protections, because it allows counties to masquerade content-based exclusions from an open forum as "reasonable closed forum restrictions."

    Under the County's reasoning, the Supreme Court decided cases like Widmar and Mergens incorrectly. The Supreme Court ruled in both cases that the government had established public forums with content-based exclusions of certain speech. Under the County's reasoning, the Supreme Court should have upheld the exclusions of religious speech in both cases, because the forums were really "limited" - all speech was permitted except religious speech. The County is wrong to argue that only one exclusion converts an open forum into a limited or nonpublic forum. If the County is right, then all exclusions are constitutional and the County is free to exclude whomever it wishes.

    Intent is only one factor of a court's analysis of whether the County has created an open forum. The County cannot create what is in reality a public forum by policy and practice, and then escape constitutional restraints by claiming it "intended" to create a closed forum.

    This is especially true where the "policy" is an unwritten practice that was never adopted in any open meeting. Judicial suspicions of exclusions should operate on the highest possible level when, as here, those exclusions are based on unwritten practices. Not only do unwritten practices lead to spotty compliance, they embrace a mechanism that is the hallmark of arbitrary government.

    The County Is Wrong to Rely on Disputed Second Circuit Decisions

    The County relies heavily on Second Circuit decisions to support its position that a government facility generally open to community groups but which excludes a few things is a limited forum. See Bronx Household of Faith v. Community School District No. 10, 127 F.2d 207 (2d Cir. 1997) and Full Gospel Tabernacle v. Community School District No. 27, 979 F. Supp. 214 (S.D.N.Y. 1997), aff'd, 164 F.3d 829 (2d Cir. 1998).

    Defendants' reliance on Second Circuit cases is certainly understandable, since there are many Second Circuit cases where speech has been stifled. Yet the County ignores what commentators call the Second Circuit's "Time1/Time2" approach to limited public fora:

    The U.S. Court of Appeals for the Second Circuit has grappled with the limited public forum doctrine since 1984 and has done so more often than nearly all of its counterparts - twenty-four times since Perry. The judges of that court have struggled to give the concept of the limited public forum intelligible content, while remaining faithful to the doctrine that the Court handed down in Perry and refined in Cornelius. Their experience is instructive, not only for its length and depth, but also for its ultimate futility.

    The Second Circuit has tried to make sense of the Supreme Court's limited public forum doctrine by heeding the distinction between content-based parameters placed on a limited public forum at the time of its creation and later content-based restrictions made after the forum has been opened. Because this analysis has a temporal component, (and for lack of any more artful turn of phrase), I call it Time1/Time2 analysis.

    Time1 is the moment of the creation of the limited public forum. At this point, the Supreme Court has allowed the government to make content-based restrictions, including limiting the forum to certain speakers or topics, so long as the restrictions are reasonable and viewpoint-neutral.... Thus, at Time1, "property remains a nonpublic forum as to all unspecified uses" ....

    Time2 is the moment of the application of the restriction to the speaker. Any content-based restriction that is applied against speakers who, at Time1, fit within the purposes for which the forum was established, will be viewed with great suspicion. The Second Circuit succinctly stated the doctrine in 1991 in Travis v. Owego-Apalachin School District, 927 F.2d 688 (2d Cir. 1991): "Thus, in a limited public forum, government is free to impose a blanket exclusion on certain types of speech, but once it allows expressive activities of a certain genre, it may not selectively deny access for other activities of that genre." Id. at 692. Entities of a character similar to those admitted to the forum are entitled to the First Amendment protections available in traditional public forums.

    Matthew D. McGill, Note, Unleashing the Limited Public Forum: A Modest Revision to a Dysfunctional Doctrine, 52 Stan. L. Rev. 929, 945-946 (2000).

    Under this Time1/Time2 analysis, the relevant legal inquiry is whether plaintiffs would have been free to use the facility at Time1. If they would, then any narrowing of the forum at Time2 deserves careful scrutiny. The facts in evidence in this case clearly indicate that Defendants changed their written policy to exclude home and private schools with an unwritten practice. Under the Second Circuit's approach, therefore, strict scrutiny must be applied - even if the unwritten practice is later reduced to writing. It is still a post hoc exclusion and would not survive even in the Second Circuit.

    The Supreme Court heard oral arguments on February 28, 2001 in a case from the Second Circuit that relied heavily on Bronx Household of Faith to exclude a religious speaker from a forum. In the case, Good News Club v. Milford Central School, 202 F.3d 502, 504 (2d Cir. 2000), the Second Circuit ruled that a public school district had created a limited forum, even though the school district's policy opened the facilities broadly to the community for "holding social, civic, and recreational meetings, and entertainment events and other uses pertaining to the welfare of the community," Good News Club at 504. Therefore, it is unknown whether the Supreme Court is on the verge of reversing the sole line of precedent the County relies on that a forum open to most community groups except a few is a nonpublic or limited forum. The Supreme Court should hand down a decision in the case by the end of June 2001.

    C. Community Center Is More Like a Traditional Public Forum Than a Nonpublic Forum

    The County actually argues that the Community Center is a nonpublic forum. This is daring advocacy, indeed. While it is highly unlikely that this Court will accept the County's invitation to take such a bold leap into the unknown, some response is in order. In light of the Fourth Circuit's decision in Warren, which held a "landscaped median strip" was a "traditional" public forum, Plaintiffs respectfully suggest that a community center may be viewed as a form of "indoor park."

    Not every "traditional public forum" is "traditional." A traditional public forum can be created by "government fiat" as well as by "long tradition." Arkansas Educational TV Commission v. Forbes, 523 U.S. 666, 677 (1998), citing Perry Ed. Assn. v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983). When a local government buys property and turns it into a park for meetings and recreation, it clearly creates a "traditional" public forum. When a local government buys property and builds a community center to serve the same public purposes as a park does, it creates a public forum by government fiat.

    Calvert County governs "parks" and "recreation" under a single Division of Parks and Recreation, and the Park Rules and Regulations are incorporated by reference within the Center Use Policy. The purposes listed for "community centers" are indistinguishable from those of "traditional" parks:

      - to provide a place for Park and Recreation programs;

      - to provide a meeting place for community organizations;

      - to provide a place for large community events;

      - to provide a place for teens to gather;

      - and to provide a place to pursue fitness activities.

    It is impossible to find any meaningful distinction between an outdoor park, a traditional public forum and a recreational building, except for four walls.


    A. Discrimination on the Basis of Status

    Defendants insist that they discriminate on the basis of the status, not the viewpoint, of the speakers. The status of the speakers matters because Defendants are worried about "sending the wrong message" to the School Board:

    Finally, the County makes a tremendous financial contribution to the Board of Education and parks and Recreation has a very close working relationship with the board of Education. Allowing a private, non-accredited school to operate in our facility sends the wrong message to the Board of Education.

    The Calvert County Board of Education has a deep commitment to public education, but that does not give the Board of Commissioners the right to shut out private educators in order to curry favor with the school board. "Private prejudice is a private matter; we are free to hate. But the same concept of liberty for all that protects our prejudices precludes their embodiment in law." Thomasson v. Perry, 80 F.3d 915, 951 (1996) (Hall, J., dissenting). "The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect." Palmore v. Sidoti, 466 U.S. 429, 433 (1984).

    This rule applies even though the group targeted by the prejudice is not a "suspect" or "quasi-suspect" class for equal protection analysis. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 448 (1985). The desire to disadvantage a politically unpopular group has never been a legitimate governmental interest. Id. at 447.

    This case is on all fours with United States Dep't of Agriculture v. Moreno, 413 U.S. 528 (1973), in which the Food Stamp Act was amended to exclude households whose members were "not all related to each other." The legislative history suggested that the Act was amended to keep "hippies" from getting food stamps. The Supreme Court rejected this resoundingly:

    For if the constitutional conception of "equal protection of the laws" means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. As a result, "[a] purpose to discriminate against hippies cannot, in and of itself and without reference to [some independent] considerations in the public interest, justify the 1971 amendment."

    Moreno, 413 U.S. at 534-35.

    B. The Presence of a Less Restrictive Means Casts "Considerable Doubt" on the Government's Interest

    In Moreno, there were legitimate concerns about fraud in the Food Stamp program, but the Court noted that those issues had already been addressed by other means:

    At the outset, it is important to note that the Food Stamp Act itself contains provisions, wholly independent of — 3 (e), aimed specifically at the problems of fraud and of the voluntarily poor. For example, with certain exceptions, — 5 (c) of the Act, 7 U. S. C. — 2014 (c), renders ineligible for assistance any household containing "an able-bodied adult person between the ages of eighteen and sixty-five" who fails to register for, and accept, offered employment. Similarly, —— 14 (b) and (c), 7 U. S. C. —— 2023 (b) and (c), specifically impose strict criminal penalties upon any individual who obtains or uses food stamps fraudulently. n8 The existence of these provisions necessarily casts considerable doubt upon the proposition that the 1971 amendment could rationally have been intended to prevent those very same abuses.

    Moreno, 413 U.S. at 536-37 [emphasis supplied].

    Likewise, in this case, there are legitimate concerns about allowing any one group to take over the whole community center. The County's policy of exclusion started when Ben Franklin Academy asked for one room in the Mt. Hope Center for four hours a day, three days a week. Defendant Meadows feared that the school wanted much more time and space. In his deposition, Mr. Meadows stated:

    Well, there's—the Ben Franklin probably had some space involved, because they essentially wanted everything. They wanted to be in there from 8 o'clock in the morning until 4 o'clock in the afternoon all the rooms. So, part of theirs was a space issue.

    That "part" of the problem is completely addressed by the Frequency of Use provisions of the written policy, which expressly limits usage to a period not to exceed two hours and a frequency not to exceed once per week. Since no private educator can do what Defendant Meadows feared, there is "considerable doubt" about Defendants claim that their unwritten policy of exclusion is intended to keep community centers from "being transformed into school buildings." If Defendants are really concerned about this problem, they need to do something about the English classes, magnet courses, classes in vessel safety, workshops on music teaching techniques, skin and nail care classes, baton twirling lessons, violin lessons, reading instruction, theater and drama classes, CPR and first aid training, tutoring for public school students, not to mention the classes that the County itself offers on math tutoring, sewing, porcelain doll making, sign language for the deaf, drawing, scratch board art, pressed flower pictures, basket making, Russian language, crochet, knitting, guitar, cooking, oil painting, and many other courses. These activities would seem to pose a more serious threat to the availability of the Community Center than the fiber arts and geography club.

    C. Private Educators Have Been Subject to Active Discrimination for Generations

    The sole effect of the County policy is to keep private educators from using the Centers to offer an alternative to public education, yet the County denies that this policy of exclusion infringes on the fundamental right of parents to direct the education of their children. "There has been no challenge whatsoever in this case to the Plaintiffs' right to home school their children and there is no 'ban' on private education." Under the County policy, however, there is a total ban on private education in the community centers.

    Defendants insist that no fundamental right is at issue in this case, but Equal Protection law prohibits invidious governmental discrimination, even when no fundamental right is at stake. The "hippies" in Moreno could not point to any Supreme Court case that established a fundamental right to "flower power," but the Plaintiffs in this case rely on case after hard-won case that clearly establishes a fundamental parental right to direct the education of a child.

    Although Defendants insist that "home schooling can hardly be compared to race, as a suspect category, or the historical discrimination suffered by African-Americans," they could hardly be more wrong. The history of American education law is shot through with examples of active governmental discrimination against private education, especially Catholic education. The Supreme Court confronted this issue just last Term:

    Finally, hostility to aid to pervasively sectarian schools has a shameful pedigree that we do not hesitate to disavow. Cf. Chicago v. Morales, 527 U.S. 41, 53-54, n. 20, 144 L. Ed. 2d 67, 119 S. Ct. 1849 (1999) (plurality opinion). Although the dissent professes concern for "the implied exclusion of the less favored," post, at 1, the exclusion of pervasively sectarian schools from government-aid programs is just that, particularly given the history of such exclusion. Opposition to aid to "sectarian" schools acquired prominence in the 1870's with Congress's consideration (and near passage) of the Blaine Amendment, which would have amended the Constitution to bar any aid to sectarian institutions. Consideration of the amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that "sectarian" was code for "Catholic." See generally Green, The Blaine Amendment Reconsidered, 36 Am. J. Legal Hist. 38 (1992).

    Mitchell v. Helms, 530 U.S. 793, 828-29 (2000).

    Diane Ravitch, a historian of educational, has detailed the early history of New York City's public schools in her book, The Great School Wars. She explains how New York City churches opened up free schools for immigrant children in the early 1800's, which the City then began to subsidize. When Catholics asked for a similar subsidy for Catholic schools, the City just took over the management of the Protestant schools, called them "Public" schools, and told the Catholics they did not need any more public schools. For the next three decades, Catholics unsuccessfully fought for equal treatment in education. In the end, faced with a choice between free but pervasively Protestant public schools, this desperately poor immigrant community shouldered the burden of starting their own parochial school system.

    Horace Mann led the crusade for "common schools" in Massachusetts in the 1830s. Mann, a Unitarian, was vigorously opposed by the most conservative Protestants, but the growing flood of Catholic immigration mobilized other Protestants to support Mann's schools. The Congregationalist journal New Englander editorialized, "It is better that Roman Catholic children should be educated in public schools in which the bible is not read, than that they should not be educated at all, or educated in schools under the absolute control of their priesthood." (Quoted from Charles Glenn, Myth of the Common School, p. 230.)

    Anti-Catholic sentiment only increased as the nineteenth century wore on. After the Civil War, President Ulysses S. Grant called for a constitutional amendment to forever prohibit public funding for "sectarian" schools. Maine Congressman James Blaine (whose campaign slogan was that he opposed "Rum, Romanism, and Rebellion") sponsored the "Blaine Amendment" to do just that. The Arizona Supreme Court analyzed Blaine's influence in a recent school choice case:

    The Blaine amendment was a clear manifestation of religious bigotry, part of a crusade manufactured by the contemporary Protestant establishment to counter what was perceived as a growing "Catholic menace." Viteritti, 15 Yale L. & Pol'y Rev. at 146; see also Stephen K. Green, The Blaine Amendment Reconsidered, 36 Am. J. Legal Hist. 38, 54 (1992). Its supporters were neither shy nor secretive about their motives. As one national publication which supported the measure wrote:

    "Mr. Blaine did, indeed bring forward . . . a Constitutional amendment directed against the Catholics, but the anti-Catholic excitement was, as every one knows now, a mere flurry; and all that Mr. Blaine means to do or can do with his amendment is, not to pass it but to use it in the campaign to catch anti-Catholic votes."

    Green, supra, at 54 (quoting The Nation, Mar. 16, 1876, at 173). Other contemporary sources labeled the amendment part of a plan to "institute a general war against the Catholic Church." Green, 36 Am. J. Legal Hist. at 44 (quoting The New York Tribune, July 8, 1875, at 4). While such efforts were unsuccessful at the federal level, the jingoist banner persisted in some states. By 1890, twenty-nine states had incorporated at least some language reminiscent of the Blaine amendment in their own constitutions. Viteritti, 15 Yale L. & Pol'y Rev. at 147. There is, however, no recorded history directly linking the amendment with Arizona's constitutional convention. In our judgment, it requires significant speculation to discern such a connection. In any event, we would be hard pressed to divorce the amendment's language from the insidious discriminatory intent that prompted it.

    Kotterman v. Killian, 193 Ariz. 273, 291, 972 P.2d 606, 624 (1999) [emphasis supplied].

    Blaine's amendment passed the House comfortably, but fell just short in the U.S. Senate. Just one vote shy of the necessary two-thirds majority, Congress was easily able to pass ordinary legislation that required all States admitted to the Union after 1876 to include a state constitutional provision for establishing public schools "free from sectarian control." With such anti-Catholic sentiment on the East Coast and these congressionally mandated restrictions on western States, by 1890, 29 States had constitutional restrictions on any public funding of "sectarian" education.

    The anti-Catholic Know-Nothings and other "nativists" viewed public schools as a powerful force for "Americanization." This became even more important as America was drawn into World War I, and anti-German sentiment was thrown into the simmering cauldron of nativist resentments. In an effort to "Americanize" its many German-speaking communities, Nebraska passed a law banning the teaching of any foreign languages. The United States Supreme Court struck this down in Meyer v. Nebraska, 262 U.S. 390 (1923).

    In 1915, Oregon went even further than Nebraska. The Ku Klux Klan and the Imperial Council of the Nobles Mystic Shrine of the Masons proposed legislation to outlaw all private schools. Their argument on the referendum ballot read:

    Our nation supports the public school for the sole purpose of self-preservation.

    The assimilation and education of our foreign-born citizens in the principles of our government, the hopes and inspiration of our people, are best secured by and through attendance of all children in our public schools.

    We must now halt those coming to our country from forming groups, establishing schools, and thereby bringing up their children in an environment often antagonistic to the principles of our government.

    Mix the children of the foreign-born with the native-born, and the rich with the poor. Mix those with prejudices in the public school melting pot for a few years while their minds are plastic, and finally bring out the finished product—a true American.

    The referendum passed, and the Society of Sisters, which ran a Catholic school, challenged it. The Court struck down the Oregon law on the basis of a parent's right to direct the education and upbringing of their children. Pierce v. Society of Sisters, 268 U.S. 510 (1925).

    This historical pattern of active discrimination against private educators is all the more important because "duplication of services" seems to be just another way of saying "competition with the public schools." American history is full of code words that say one thing and mean another. This Court has the duty and high privilege of looking past the words to discern the thoughts and intents of the heart.

    The County begins its argument with the astonishing legal claim that classes are not "speech," and ends with the astonishing proposition that a regular rent-free meeting space is not a "benefit." In the intervening pages, the County single-mindedly defends a policy with one, and only one, observable effect: it keeps private educators from competing with public schools.

    All these Plaintiffs wanted was a place to host an educational club so their children could enjoy a richer and more satisfying education. That, however, is all that the County prohibits. This is simply wrong. No government has a legitimate interest in preventing better education. Without a legitimate interest for its policy of exclusion, the County cannot survive the lowest level of judicial scrutiny - rational basis review.

    Even if the County could point to a legitimate interest that had not already been addressed by less restrictive means, it would need to survive much stricter scrutiny before it could lawfully deprive citizens of their right to free expression or to educate their children as they see fit. Free speech and private education are fundamental rights that deserve the highest, not the lowest, level of judicial review.

    For the foregoing reasons, therefore, Plaintiffs respectfully ask this Court to grant summary judgment in their favor.

    Respectfully submitted,


    Dated: April 30, 2001

    By: ____________________________________
    MICHAEL P. FARRIS (D.C. Bar No. 385969)
    DAVID E. GORDON (Va. Bar No. 38034)
    Home School Legal Defense Association
    Post Office Box 3000
    Purcellville, Virginia 20134
    (540) 338-5600

    JORDAN LORENCE (Va. Bar No. 33655)
    Northstar Legal Center
    P.O. Box 2074
    Fairfax, VA 22031
    (703) 359-8619

    MATTHEW PAAVOLA (Md. U.S. Dist. Court No. 2452)
    Attorney at Law
    2113 Orems Road
    Baltimore, MD 21220
    (410) 574-8000

    Attorneys for Plaintiffs


    I, Scott W. Somerville, an attorney with the Home School Legal Defense Association, do hereby certify that the foregoing memorandum in opposition to Defendants' cross motion for summary judgment and reply brief in support of summary judgment for Plaintiffs was served upon opposing counsel by Federal Express, this 30th day of April, 2001, at the following address:

      Daniel Karp, Esq.
      Allen, Johnson, Alexander & Karp, P.A.
      100 E. Pratt St., Suite 1540
      Baltimore, MD 21202
      (410) 727-5000


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