IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-31071

Consolidated with No. 99-31140

SALLY CAMPBELL;

LOUISIANA CHRISTIAN COALITION,

Plaintiffs-Appellees,

versus

ST. TAMMANY PARISH SCHOOL BOARD; EDDIE FIELDIN G, in his official

capacity as a member of the St. Tammany Parish School Board; A.R.

SMITH, also known as Smi tty Smith, in his official capacity as a

member of the St. Tammany Parish School Board; GREGORY J. SAURAGE,

i n his official capacity as a member of the St. Tammany Pari s h

School Board; DONALD J. VILLERE, in his official capacity as a

member of the St. Tammany Parish School Board; PATTI YOUNG, in her

official capacity as a member of the St. Tammany Parish School

Board; DANIEL G. ZECHENELLY, in his official capacity as a member

of the St. Tammany Parish School Board; BETTY VERZWYVELT, in her

official capacity as a member of the St. Tammany Parish School

Board; JOHN C. LAMARQUE, in his official capacity as a member of

the St. Tammany Parish School Board; E. ROTH ALLEN, in his official

capacity as a member of the St. Tammany Parish School Board; JAMES

PANKS, SR., also known as Ronnie Panks, Sr., in his official

capacity as a member of the St. Tammany Parish School Board;

ANTHONY TEDESCO, also known as Ton y Tedesco, in his official

capacity as a member of the St. Tammany Parish School Board; RAY A.

ALFRED, in his of ficial capacity as a member of the St. Tammany

Parish School Board; MARY K. LYNCH, in her official capacity as a

member of the St. Tammany Parish School Board; CHARLES T. HARRELL,

in his official capacity as a m ember of the St. Tammany Parish

School Board; NEAL M. HENNEGAN, in his official capacity as a

member of the S t. Tammany Parish School Board; LEONARD P.

MONTELEONE, in his official capacity as Superintendent of the St.

Tammany Parish School Board; WILLIAM B. BRADY, in his official

capacity as Administrative Supervisor of the St. Tammany Parish

School Board,

Defendants-Appellants.* Circuit Judge of the Eighth Circuit, sitting by designation.

1 St. Tammany Parish School Board, Use of School Fa cilities

Policy (Nov. 13, 1997). There is a complete stipulation covering

the use of school facilities under the rules at issue here

suggesting in part that many groups like to play basketball.

2 Id.

3 There is a complete stipulation covering the use of school

facilities under the rules at issue here suggesting in part that

2 Appeals from the United States District Court

For the Eastern District of Louisiana, New Orleans

ORDER ON PETITION FOR PANEL REHEARING

(Opinion 3/9/00, 5 Cir., _____, _____ F.3d _____ )

Before POLITZ, JOHN R. GIBSON, * and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:

We held that the First Amendment does not force the St.

Tammany Parish School Board to permit partisan political activity,

for-profit fund-raising, and “religious services” in a limited

public forum, reserved for recreational and civic activities. The

entire court has refused to reconsider the panel’s opinion. The

panel has refused to reconsider for the reasons we will explain.

St. Tammany policy permits “the use of some of the public

school buildings as a limited public forum.” 1 The policy permits

“civic and recreational meetings and entertainment and other uses

pertaining to the welfare of the community .” 2 Basketball games,

Scout meetings, and dance or music recitals were the overwhelming

uses of the facilities disclosed by the record. 3 While the policymany groups like to play basketball.

4 Compare Bd. o f Airport Comm’rs v. Jews for Jesus , 482 U.S.

569 (1987) (striking down a categorical ban on First Amendment

activity in airports).

5 Id.

6 Campbell v. St. Tammany’s Sch. Bd.

, 206 F.3d 482, 484 (5th

Cir. 2000).

7 418 U.S. 298 (1974).

3 did not attempt to restrict First Amendment activity attendant to

such civic or recreational uses, 4 it did exclude partisan political

activity, for-profit fund-raising, and “religious services or

religious instruction.” 5 Tracking the prohibitions of the rule,

plaintiffs requested permission to use St. Tammany’s facilities on

a specific occasion “to worship the Lord in prayer and music” and

to “pray about” and “engage in religious and Bible instruction with

regard to” various issue s. 6 The school district denied the

request, and the plaintiffs filed suit. The district court granted

summary judgment for the plaintiffs, persuaded that the r ule was

too vague. We reversed.

I

We remain convinced that St. Tammany has not created a public

forum. The government, when it chooses to open a forum,

necessarily has leeway to establish the terms upon which the forum

is opened. Thus, for example, in L ehman v. City of Shaker

Heights

, 7 a cit y government had the prerogative to exclude

political advertising, even though it generally allowed commercial8 418 U.S. at 300-02.

9 See Hazelwood Sch. Dist. v. Kuhlmeier , 484 U.S. 260, 267

(1988) (“The public schools do not possess all of the attributes of

streets, parks, and other traditional public forums . . . .”).

10 473 U.S. 788 (1985).

11 473 U.S. at 802.

4 advertising on city busses. 8 This even though political speech

lies at the core of the First Amendment. St. Tammany has done no

more than exercise that leeway. It does not censor First Amendment

activity attendant to the civic or recreat ional use of school

facilities. It merely forbids three activities, albeit expressive

activities: partisan political activity, for-profit fund-raising,

and religious services.

Since a middle school is not a traditional public forum, 9 the

type of forum c reated by the St. Tammany policy is a function of

the intent of the Board. As the Supreme Court held in C ornelius v.

NAACP Legal Defense and Educational Fund

, 10

The government does not create a public forum by inaction or

by permitting limited discourse, but only by intentionally

opening a nontraditional forum for public discourse.

Accordingly, the Court has looked to the policy and practice

of the government to ascertain whether it inten ded to

designate a place not traditionally open to assembly and

debate as a public forum. The Court has also examined the

nature of the property and its compatibility with expressive

activity to discern the government’s intent. 11

Here, the intent of St. Tammany is abundantly clear. The policy

begins by indicating that it seeks to create “a limited public12 St. Tammany Parish Schoo l Board, Use of School Facilities

Policy (Nov. 13, 1997).

13 473 U.S. at 805.

5 forum.” 12 That intent, to limit use of the forum, is reinforced by

the restrictions imposed in the policy: no partisan political

activity, no for-pr ofit fund-raising, and no religious services.

T hese evenhanded exclusions, which the record shows to have b een

uniformly enforced, also rebut any inference that the purpose

statement is some how pretextual, or made in bad faith. That St.

Tammany does not censor speech incident to the civic and

recreational uses for which the forum was opened, even specifically

i ncluding religious viewpoints, “does not imply that the foru m

thereby becomes a public forum for First Amendment purposes.” 13 It

merely implies that St. Tammany assiduously avoided viewpoint

discrim ination, while still limiting the purposes for which it

opened its schools.

St. Tammany has not permitted an indiscriminate range of uses.

Express per mission, almost always in writing, is required before

using any of the school facilities. Many groups use the

facilities, but for only a handful of purposes. Although “civic

and recreational” uses might have a quite different meaning in San

Francisco or Chicago, the l ocal school board, familiar with St.

Tammany Parish culture, knew what “civic and recreational” uses

meant in St. Tammany. Their expectations regarding the activities

they were permitting were not disappointed, and the uses made of14 While groups having a religious character often used the

schools, the record reveals that those groups almost always played

basketball: “Knights of Columbus: Hoop Shots”; “Starlight Baptist:

Basketball Practice.” The Fellowship of Christian Athletes

apparently shares this proclivity for basketball. One request for

use read: “We need a place to practice [basketball] because Slidell

High’s gym is being used for Fellowship of Christian Athletes.”

This is in fact the only mention in the record of use by this

group, despite Plaintiffs’ efforts to highlight it.

6 school facilities in no way frustrated the board’s explicit purpose

of creating a limited public forum. For example, well over half of

the uses reported in the record are affirmatively described as

sports, dance or music recitals, or Scouting events. 14 The record

affirmatively reflects that almost seventy-five percent of all uses

were for activities directly relate d to students, including PTA

meetings, standardized tests, and graduations. Although the record

shows some that civic groups, such as the Chamber of Commerce or

homeowners’ associations, occasionally met in a school cafeteria,

the record contains no evidence of the content of the programs,

beyond occasional annotations referring to annual teas or banquets.

Some plainly were relevant to students; a Lion’s Club, for example,

“adopted” a school. In sum, the record shows that St. Tammany

schools were overwhelmingly used by groups for activity of interest

to students or parents. Such a limited set of uses does not create

a public forum, as the Supreme Court held in Perry Education

Association v. Perry Local Educators’ Association :

We can only conclude that the schools do allow some outside

organizations such as the YMCA, Cub Scouts, and other civic

and church organizations to use the facilities. This type of

selective access does not transform government property into15 Perry Educ. Ass’n v. Perry Local Educators’ Ass’n

, 460 U.S.

37, 47-48 (1983) (emphasis added).

7 a public forum.

. . . Moreover, even if we assume that by

granting access to the Cub Scouts, YMCA’s, and parochial

schools, t he School District has created a “limited” public

forum , the constitutional right of access would in any event

extend only to other entities of similar character. While the

school mail facilities thus might be a forum genera lly open

for use by the Girl Scouts, the local boys’ c lub, and other

organ izations that engage in activities of interest and

educational relevance to students, they would not as a

consequence be open to an organization such as PELA, which is

concerned with the terms and conditions of teacher

employment. 15

On the record of this case St. Tammany has not created a public

forum. It limited use at all times, and the uses it allowed are

overwhelmingly typical inter ests and activities of students and

parents – mostly recreation and sport.

St. Tammany is attempting to open its school facilities. A

contrary holding would frust r ate that objective and diminish,

rather than increase, opportunities for freedom of speech. Under

the Supreme Court’s ju risprudence, a government entity such as a

school board has the opportunity to open its facilities to activity

protected by the First Amendment, without inviting political and

religious activities presented in a form that would disserve its

efforts to maintain neutrality. We are persuaded that the

Constitution does not deprive local school boards of that choice,

and courts stand ready to hear complaints of pretext or bad faith.

Were we to hold otherwise, a school board would be put to a choice

of maintaining a public forum or no forum at all. Just as church16 See Heffron v. Int’l Soc’y for Krishna Consciousness, Inc.

,

452 U.S. 640, 652-53 (1981).

17 See Jews for Jesus , 482 U.S. at 577.

8 services could not be excluded from a public forum, neither could

partisan political activities or for-profit fund-raising. There is

no “in between” forum in which religious services must be allowed

but partisan political activity can be banned. The concept of a

limited public forum does not permit such preferences – a

preference for religion that itself could be seen as viewpoint

based. 16 Nor could St. Tammany allow civic and recreational uses,

but categorically bar all attendant First Amendment activity. 17

Thus, if St. Tammany cannot define and limit the forum it creates,

it may have no alternative but to close its doors to all afterhours activity.

II

We remain convinced that St. Tammany’s policy is not viewpoint

discriminatory. By its plain language, St. Tammany’s policy

permits the expression of religious viewpoints. Immediately after

the provision challenged here, ba r ring “religious services or

religious instruction on school premises,” the policy goes on to

state: “However, the use of schoo l facilities by outside

organizations or groups out side school hours for the purpose of

discussing religious material or material which contains a

religious viewpoint or f or distributing such material is18 St. Tammany Pari sh School Board, Use of School Facilities

Policy (Nov. 13, 1997) (emphasis added).

19 The provisions of St. Tammany’s policy that expressly permit

discussion of religious viewpoints provide affirmative evidence

that the policy is not driven by viewpoint discrimination.

20 This parallelism raises the question of how far the

Plaintiffs would take their reasoning. Would not St. Tammany also

be required to allow Democrats and Republicans to hold rallies on

school campuses? See Heffron , 452 U.S. at 652-53.

9 permissible if it does not interfere with one of the primary uses

of such facilities.” 18 The policy’s express tolerance of discussion

from a reli gious viewpoint rebuts any inference of viewpoint

discrimination.

St. Tammany’s policy is supported by rational reasons

sufficient to rebut any inference that its decision to exclude

religious services was viewpoint discriminatory. Especially where,

as here, the school district has affirmative evidence that its

motive was not viewpoint discrimination, 19 such reasons need only

be rational. They need not be compelling. St. Tammany has not

singled out religious speech for unfavorable treatment. What St.

Tammany has done is to prohibit three forms of potential activities

that might erode the neutrality of the schools. St. Tammany bars

partisan politica l activity, lest the schools be drawn into

partisan frays or give an appearance of support for Democrats or

Republicans. St. Tammany bars religious services, lest the schools

appear to prefer Christians or Muslims, and religion over nonreligion. 20 It does not matter that the Establishment Clause does21 See Police Dept. of Chicago v. Mosley

, 408 U. S. 92, 95-97

(1972) (n oting that the “operative distinction is the message on

the picket sign,” and explaining past jurisprudence as

“condemn[ing]

. . . discrim ination among different users of the

same medium of expression”).

22 Widmar v. Vincent

, 454 U.S. 263, 269 (1981)

, is not to the

contrary. As the Supreme Court made clear in C ornelius

, the

University in Widmar had “evidenced a clear intent to create a

public forum.” 473 U.S. at 802. The error made by the University,

whic h W idmar corrected, was the “erroneous conclusion that the

Establishment Clause required the exclusion of groups meeting for

religious purposes.” 473 U.S. at 803. Here, by contrast, St.

Tammany has evidenced, by its rules and by the manner of

enforcement, a clear intent to create only a limited public forum.

10 not require St. Tammany to exclude religious services. The school

board could rationally decide as it did in discharging the duty of

evenhanded treatment. Nor does it matter that federal judges would

cast a diffe rent vote were they members of the school board, or

that political winds encourage such views

– at least, it should not

matter.

This distinction, between prohibiting religious services and

prohibiting expression from a religious viewpoint, is no more

conceptually difficult than the distinction between prohibiting

picketing and prohibiting all picketing except that which bears on

a labor dispute. 21 A religious service is an activity, a manner of

communicating which carries a very special and distinct meaning in

our culture. While a service may express a religious viewpoint,

for example, a Catholic mass featuring a prayer for the welfare of

the unborn and for the reform of American abortion law, the

distinction is betw een medium and message. 2 2 Under St. Tammany’s23 T he churches of St. Tammany Parish have little or no

interest in using a school facility for such purposes, as a scan of

the uses made discloses.

24 Heffron , 452 U.S. at 652-53.

11 policy, thus, a Catholic group could assemble on school property to

“discuss” a Christian anti-abortion viewpoint and “distribute . .

. material” advocating a Christian anti-abortion viewpoint. They

would only run afoul of the policy if they also chose to “conduct

religious services.” 23

“[R]eligious organizations” do not “enjoy rights to

communicate . . . superior to those of other organizations having

social, political or ideological mess ages to proselytize.” 2 4 In

this case, St. Tammany decided that it did not wish to create a

public forum. Rather, it preferred a policy of not restricting

free expression attending the permitted uses of school facilities,

while still avoiding forms of expressive activity that it believed

eroded its goal of neutrality. No one in this case contends that

St. Tammany is guilty of viewpoint discrimination because it bars

partisan political activity. Insisting here that St. Tammany’s ban

on religious services is unconstitutional looks less like a reach

for equal treatment, and more like a reach for an affirmative

preference for religious speakers over political speakers.

III

In denying rehearing we note that in the present case, the

Plaintiff specifically requested accommodations for a single25 See Bronx Household of Faith v. Cmty. Sch. Dist. No. 10

, 127

F.3d 207, 217 (2d Cir. 1997) (Cabranes, J., concurring in part and

dissenting in part).

26 202 F.3d 502 (2d Cir. 2000), cert granted 2000 WL 838152.

27 202 F.3d at 507.

12 program of religious worship and instruction. The carefully framed

request for use did not propose to lecture or teach religion or

religious tenets. The Coalition’s request and the St. Tammany

rules are fairly read to speak to worship services. St. Tammany

policy follows its prohibition of religious instruction with an

explicit statement that “discussing religious material or material

which contains a religious viewpoint” is permitted. Read in

context, the distinction between religious instruction as part of

a religious service and instructing on the matter of religion is

clear. St. Tammany’s rules need not be read to prohibit the

latter. 2 5 In any event, that question is not presented in this

case.

IV

Plaintiffs draw to our attention the Supreme Court’s decision

to grant certiorari in Good News Club v. Milford Central School

.

This case, however, is materially different. 26 The Milford policy

provides that “School premises shall not be used

. . . for

religious purpo ses.” 2 7 There is a powerful argument that such a

prohibition against the use of facilities for a religious purpose

is facially invalid as inevitably presenting viewpoint13

discrimination. This sharply contrasts with St. Tammany Parish’s

prohibition of a religious service

. The purpose of the speaker is

not the inquiry in St. Tammany Parish. Nor does it present the

question of religious instruction. In St. Tammany Parish the

request was to “worship the Lord in prayer and music

. . .,” as we

have explained.

The baseline of both the majority and the dissenting opinions

in the Second Circuit’s decision in Good N ews Club was that a

worship service could properly be excluded. In the limited forum

created by St. Tammany Parish, there is no restriction upon

religious activity, including teaching from a religious

perspective, attending use of the school facili ty unless it was

partisan political activity, for profit activity, or a religious

service. To illustrate our point, as we have read the St. Tammany

Parish rule, encouraging children to memorize Bibl e verses with

opening and concluding prayer may be a religious activity, it may

have a religious purpos e, but it would not be prohibited as a

religious service. St. Tammany Parish’s rule against religious

service is facially valid, and there is no evidence that its

efforts to create a limited public forum or its application of its

rules are a pretext for viewpoint-based discrimination. Fairly

read in context, the rule draws a clear common sense distinction.

That the meaning of a rule prohibiting a religious service can be

taxed at it s margins is no fatal vice. It is understandable and14

falls far short of an unlicensed power to censor. The

even handedness of St. Tammany’s regulations of its school

facilities belies any contrary suggestion.

V

Treating the Petition for Rehearing En Banc as a Petition for

Panel Rehearing, the Petition for Panel Rehearing is DENIED. The

court having been polled at the request of one of the members of

the court and a majority of the judge s who are in regular active

service not having voted in favor ( F E D

. R. A PP

. P. and 5 TH C IR

. R.

35), the Petition for Rehearing En Banc is DENIED.28 No issue of partisan politi cal use of the school

buildings is before us in this case.

29 These include the Fellowship of Christian Athletes; Mt.

Zion Methodist Church Annual Tea; Wildlife and Fisheries Hunter

15 EDITH H. JONES, Circuit Judge with whom SMITH, BARKSDALE, EMILIO M.

GARZA, and DeMOSS, Circuit Judges dissenting from th e denial of

rehearing en banc:

This is an equal access case. The question is whether

public authorities may exclude “rel igious services or religious

instruction” as after-hour rental uses of school facilities, when

they have permitted all other uses consistent with the “welfare of

the public”, ex cept partisan political activity 2 8 and for-profit

fund-raising. In upholding this blatant discrimination against

religious speech a panel of our court seriously erred. C ampbell v.

St. Tammany Parish Sch. Bd.

, 206 F.3d 482 (5th Cir. 2000). Its

opinion conflicts with the Supreme Court’s equal access and

v iewpoint discrimination cases, decisions of five other circuit

courts, and previous Fifth Circuit cases. We dissent from the

denial of en banc review.

The facts are strai ghtforward. The St. Tammany Parish

School Board al lows after-hours use of its facilities for civic,

social and recreational purposes, subject to the exceptions noted

above. Over sixty buildings have been opened to hundreds of

community groups. 29 But Sally Campbell and the Christian Coalitionsafety training; Southeastern University Community Education

Classes; Mary Dee’s Dance Studio recital; church black hi story

program; Young Marines meeting; Knights of Columbus meeting; PrideRape defense program, etc. The St. Tammany School facilities have

been used for a variety of other purposes, such as: Righteous

Rumble Youth Conference; Brugier Homeowner’s Association Candidate

Forum; Northshore DARE Association Meeting; Willow Wood Homeowner’s

Association meeting; Folsom Native Plant Society meeting; Northwest

St. Tammany Civic Association meeting; Primary Colors Pre-school

Christmas program; Relay for Life Cancer fundraiser; Pearl River

Volunteer Fire Department banquet; First Church of God banquet;

Drainage Board meeting; Gold Wing Riders benefit; Boy and Girl

Scouts meetings; Young Blood International seminar; wedding

reception; EPA meeting; Kiwanis Club breakfast; Sister-to-Sister

conference; and Commission on Families fair.

16 were, under this policy, denied permission to use the facilities to

discuss educational, family and political issues, to pray about

those issues, to teach the Bible with regard to those issues, and

to worship God in prayer and music.

As the panel noted, this case turns initially on what

type of expressive forum the school board created. When public

facilities are available “for indiscriminate use by the general

p ublic”, a designated public forum exists, and content-based

exclusion of speakers must survive strict scrutiny review. Perry

Education Ass’n. v. Perry Local Educators’ Ass’n.

, 460 U.S. 37, 47,

103 S.Ct. 948, 956 (1983) . If, however, because of the narrow

scope of its intended use, a forum is non-public, then reasonable,

viewpoint-neutral content restrictions may be imposed. See, e.g.

Perry 460 U.S. at 47, 103 S.Ct. 956 (te achers’ mailboxes are a

nonpublic forum); Lamb’s Chapel v. Center Moriches Union Free Sch.

Dist.

, 508 U.S. 384, 113 S.Ct. 2141 (1993) (excluding religious30 For reasons that are not clear, the panel in its l engthy

order on panel rehearing, no longer perceives this as a “minimally

sufficient” case to maintain the school buildings’ status as a nonpublic forum. See Campbell , 206 F.3d at 487.

17 viewpoint from access to after-hours use of school facilities is

unconstitutional).

The panel’s first error lies in its allowing St.

Tammany’s policy to dictate what type of forum exists. The panel

observes the Board’s written limits on use of school facilities and

concludes that, because political and for-profit fundraising

activities are prohibited as well as religious instruction or

worship, the Board was not solely motivated to discriminate against

religious speech. Further, the district policy restricts “more

types of uses” than a policy that the Second Circuit held did not

create a public forum. B ronx Household of Faith v. Community Sch.

Dist. No. 10.

, 127 F.3d F.3d 207, 210 (2nd Cir. 1997). Implicitly,

the panel holds that the panoply of what the school district

perm its is less important to the forum determination than the

speech it excludes. 30

With due respect, the panel is looking through the wrong

end of the telescope. Such a narrow view of the conditions under

which a designated public forum can arise is incorrect. “The

Constitution forbids a state to enforce certain exclusions from a

forum generally open to the public

, even if it was not required to

create the forum in the first place.” W idmar v. Vincent

, 454 U.S.31 “The Church argued below that because unde r Rule 10 of

the rules issued by the District, school property could be used for

‘social, civic, and recreational’ purposes, the District had opened

its property for such a wide variety of communicative purposes that

restrictions on communicative uses of the property were subject to

the same constitutional limitations as restrictions in traditional

public forums such as parks and sidewalks. Hence, its view was

that subject matter or speaker exclusions on District property were

required to be justified by a compelling state interest and to be

narrowly drawn to achieve that end.

. . . T he argument has

considerable force

, for the District’s property is heavily used by

18 263, 267-68, 102 S.Ct. 269, 273 (1981) (emphasis added). See also

Perry , 460 U.S. at 45, 103 S.Ct. at 955. All that is required is

that the forum be “generally open” to the public: “Once a forum is

opened up to assembly or speaking by some groups

, government may

not prohibit others from assembling or speaking on the basis of

what they intend to say.” P olice Department of Chicago v. Mosley

,

408 U.S. 92, 96, 92 S.Ct. 2286, 2290 (1972) (emphasis added). S ee

Hazelwood Sch. Dist. v. Kuhlmeier

, 484 U.S. 260, 267, 108 S.Ct.

562, 568 (1988)(public facilities opened for indiscriminate use by

the general public “or by some segment of the public” are

designated public fora).

Also pertinent for present purposes , the Supreme Court

has strongly suggested that a designated public forum is created

when a school district, which purports to pro hibit after-hours

“religious uses” of public facilities, nevertheless allows access

by a wide variety of private organizations, including some that may

have carried out religious purposes. S ee Lamb’s Chapel ,508 U.S. at

391, 113 S.Ct. at 2146 (1993); 31 see also Bronx Household

, 127 F.3da wide variety of public organizations, including some that

presented a “close question,” which the Court of Appeals resolved

in the District’s favor, as to whether the District had in fact

already opened its property for religious uses.” [footnote omitted]

(emphasis added) Lamb’s Chapel

, id. at 2146.

19 207, 218 (2nd Cir. 1997)(Cabranes, J., concurring and dissenting)

(noting that Bronx Household is bound to non-public forum

description of school dis trict policy by circuit precedent,

notwithstanding “anvil-like hint” in Lamb’s Chapel

.

Contrary to the panel decision, most circuit courts have

recognized that the government “create[s] a publ ic forum by

allowing diverse groups to use its auditorium.” C oncerned Women

for America, Inc. v. Lafayette County , 883 F.2d 32, 34 (5th Cir.

1989). That a public school rather than a university or library or

ballpark is the facility in question makes no difference. S ee

Grace Bible Fellowship 941 F.2d 45 (1st Cir. 1991)(Breyer, J., on

the panel); Gregoire v. Centennial Sch. Dist. , 907 F.3d 1366 (3rd

Cir. 1990). It is what the school district “does, not what it

says” t hat determines the type of forum. G regoire

, 907 F.2d at

1374 (citing Board of Education v. Mergens

, 496 U.S. 226, 244, 110

S.Ct. 2336, 2369 (1990)). Were it otherwise, a public body could

unilaterally narrow a designated public forum so as to exclude

disfavored groups, cynically circumventing the Supreme Court’s

public forum jurisprudence. This court and others have thwarted

such obvious machinations. G regoire

, 907 F.2d at 1378; Hays County

Guardian v. Supple , 969 F.2d 111, 117-18 (5th Cir. 1992).32 The various cases finding that a non-public forum existed

are clearly distinguishable from the present factual situa tion.

See Lehman v. City of Shaker Heights , 418 U.S. 298, 94 S.Ct. 2714

(1974) (limited access to advertising spa ce on buses); G reer v.

Spock

, 424 U.S. 828, 96 S.Ct. 1211 (1976) (military base is a nonpub lic forum); A dderley v. Florida

, 385 U.S. 39, 87 S. Ct. 242

(1966) (jailhouse grounds not public forum); C ornelius

, 473 U.S.

788, 105 S.Ct. 3439 (1985) (federal work place exists to accomplish

the business of the employer and is thus not open to all charitable

organizations. See also Perry ,460 U.S. at 47, 103 S.Ct. at 956).

33 Knights of the Ku Klux Klan v. East Baton Rouge Parish

Sch. Bd. , 578 F.2d 1122 (5th Cir. 1978).

20 Since the broad “welfare of the community” standard and

the actual use of the fac ilities, rather than the district’s

exclusion of three categories of speech, determine the type of

forum, it should have been plain that the St. Tammany policy

created a limited public forum. S ee, e.g., Grace Bible Fellowship

,

941 F.2d at 47; Gregoire , 907 F.2d at 1374, 1375. Cases in which

non-public fora were found, by contrast, were those in which the

forum is not dedicated to general debate or the free exchange of

ideas, or the nature of the property is “in consistent with

expres sive activity.” C ornelius v. NAACP Legal Defense and

Education Fund

, 473 U.S. 788, 803, 105 S.Ct. 3439, 3449 (1985). 3 2

Neither of those descriptions accords with St. Tammany’s policy or

practice.

Under the proper test, the district facilities were open

“indifferently” 33 for use by private groups. The content-based

exclusion of religious speakers from access to the faciliti es is34 See also Widmar

, 454 U.S. at 269, 102 S.Ct. at 274. (if

t he government creates a “generally open forum,” it canno t

discrimi nate against groups “engag[ing] in religious worship and

discussion [since] [t]hese ar e forms of speech and association

protected by the First Amendment.”) So much for the panel’s

attempted distinction between religious meetings and “religious

instruction and worship.”

21 censorship pure and simple. G race Bible Fellowship

, 941 F.2d at

47. As the Supreme Court explains,

If a state refused to let religious groups use

facilities open to others

, then it would

demonstrate not n eutrality but hostility

toward religion. “The Establishment Clause

does not license government to treat religion

and those who teach or practice it, simply by

virtue of their status as such, as subversive

of American ideals and therefore subject to

unique disabilities.”

Board of Education of Westside Community Schools Mergens

, 496 U.S.

226, 248, 110 S.Ct. 2356, 2371 (1990) (citing McDaniel v. Paty

, 435

U.S. 618, 641, 98 S.Ct. 1322, 1335 (1978) (Brennan, J., concurring

in judgment)) (emphasis added). 34

The panel’s second error was to const rue the board’s

policy, if it legitimately created a non-public forum, as

maintaining both a reasonable and viewpoint-neutral content

restriction against rel igious worship and instruction. In a

nonpublic forum, “content discrimination may be permissible if it

preserves the purposes of that limited forum, [but] viewpoint

discrimination

. . . is presumed impermis sible when directed

against speech otherwise within the forum’s limitations.”35 “It does not violate the Establishment Clause for a

public [school] to grant access to its facilities on a religionneutral basis to a wide spectrum of

... groups, including groups

22 Rosenberger v. Rector and Visitors of the Univ. of Virginia

, 515

U.S. 819, 829-30, 115 S.Ct. 2510, 2517 (1995).

The panel opinion says nothing about the policy’s

reasonableness, which must be judged in light of the forum’s

general “welfare of the public” standard. The omission is

particularly curious given the Supreme Court’s criticism in Lamb’s

Chapel that the lower court there had failed to examine the

reasonableness of a restriction against using school buildings

after-hours for “religious purposes”. One would suppose that

without a finding of its reasonableness vis à vis the scope of the

forum, a content restriction is doomed. Lamb’s Chapel , 508 U.S.

at 393 n. 6, 113 S.Ct. at 2147 n. 6.

The policy is, in any event, unreasonable. Perhaps it

was motivated by fear that public schools would become the font of

off-hours s ectarian activity, but there is no record evidence of

this. If, on the other hand, the fears relate to excessive use of

the facilities, the district could review its custodial regulations

to assure that all off-hours costs were recovered. But there is no

evidence of these fears, either. C ompare Fairfax Cov. Church v.

Fairfax County School Board

, 17 F.3d 703 (4th Cir. 1994). Finally,

no legitimate establishment clause violation occurs from allowing

religious groups equal access to after-hours rentals. 35that use meeting rooms for sectarian acti vities, accompanied by

some devotional exercise.” R osenberger

, 515 U.S. at 842, 115 S.Ct.

at 2523. Since the facilities are used after-hours, there is no

threat of a captive audience; since the facilities are used by a

variety of groups, there is no threat of the schools’ endorsing

religion: “[B]y creating a forum the [school] does not thereby

endor se or promote any of the particular ideas aired there.”

Widmar , 454 U.S. at 271 n.10, 102 S.Ct. at 275 n.10.

36 see n.2 supra

.

23 The crux of the issue is this: when measured against the

“welfare of the public st andard,” how can the prohibition of

religious worship or instruction be anything other than viewpoint

discrimination? Even the Second Circuit understood that religious

worship services are “the ultimate in speech from a religious

viewpoint” B ronx Household

, 127 F.3d at 215. To describe the

exclusion as covering “religious activity” somehow outside the pale

of the community’s welfare makes no sense. Such a distinction not

only invites active censorship by the St. Tammany School Board

-

e.g. , does a prayer or Christian exhortation at the Fellowship of

Christian Athletes meeting make it a religious worship service? 36

– but it flatly dis criminates against those who practice, rather

than simply profess or talk about, religion. Both of these effects

have been condemned by the Supreme Court’s equal access

jurisprudence.

Most rece ntly, the Court ruled that when a university

funds student publications generally, and does not exclude religion

as a subject matter, it is unconstitutional for the school to24

discriminate based on some speakers’ religious viewpoint.

Rosenberger

, supra

. Allowing the Fellowship of Christian Athletes,

the Knights of Columbus and other religious groups to use the St.

Tammany facilities demonstrates, along with the board’s broad

written access policy, that religious subject matter is not

excluded from after-hours rentals. R osen berger made plain that

“the guarantee of neutrality is respected, not offended, when the

government, following neutral criteria and even-handed policies,

extends benefits to recipients whose ideolog ies and viewpoints,

including religious ones, are broad and diverse.” R osenberger

, 515

U.S. at 839, 115 S.Ct. at 2521; see also O’Connor, J. concurring,

(emphasizing that exclusion of religious groups would evince

hostility to religion), 515 U.S. at 846 n. 5, 115 S.Ct. at 2525 n.

5. R osenberger condemned the imposition of viewpoint distinctions

by the university that would inevitably lead to “governmental

c ensorship, to ensure that all student writings and publications

meet some baseline standard of secular orthodoxy.” 515 U.S. at

844, 115 S.Ct. at 2524. So it is in this case. Rosenberger then

repeated the description of this danger from one of the Court’s

first equal access cases:

[T]he dissent fails to establish that the distinction

[between ‘religious’ speech and speech ‘about’ religion]

has intelligible content. There is no indication when

“singing hymns, reading scripture, and teaching biblical

principals” cease to be “singing, teaching, and reading”-

-all apparently forms of “speech,” despite their

religious subject matte r--and become unprotected

“worship.”

. . . [E]ven if the distinction drew an37 See also Church on the Rock v. City of Albuquerque

, 84

F.3d 1273, 1278 (10th Cir. 1996), overturning a prohibition against

using an otherwise publicly available senior citizens’ center for

religious worship. The court held that:

... even if the City had not previously opened the Senior

Centers to presentations on religious subjects, its

policy would still amount to viewpoint discrimination.

Any prohibition of sectarian instruction where other

instruction is permitted is inherently non-neutral with

respect to viewpoint. Instruction becomes “sectarian”

when it manifests a prefe rence for a set of religious

beliefs. Because there is no non-religious sectarian

instruction (and indeed the concept is a contradiction in

terms), a restriction prohibiting sectarian instruction

intrinsically favors secularism at the expense of

religion. Therefore, we conclude that the City’s policy

constitutes viewpoint determination.

See also Good News/Good Sports Club v. School District of the City

of Ladue , 28 F.3d 1501, 1507 (8th Cir. 1994).

25 arguably principled line, it is highly doubtful it would

lie within the judicial competence to administer. Merely

to draw the distinction would require the university--and

ultimately the courts--to inquire into the significance

of words and practices to different religious faiths, and

in varying circumstances by the same faith. Such

inquiries would tend inevitably to entangle the State

with religion in a manner forbidden by our cases.

Rosenberger

, 515 U.S. at 845, 115 S.Ct. at 2524 (citing Widmar

, 454

U.S. at 269-70, n.6, 102 S.Ct. at 274, n .6)(citations omitted). 3 7

To paraphrase one court, the panel opinion would allow

atheists to put on a program denouncing religion or anti-Semites to

sponsor a rant against Judaism, but it would not allow religious

believers of any stripe to convene or instruct the faithful in this26

forum. S ee Church on the Rock , 84 F.3d at 1279; s ee also Grace

Bible F ellowship , 941 F.2d at 47. This is the very essence of

viewpoint discrimination.

It is unfortunate for the citizens of the Fifth Circuit

that this court has seen fit to retreat from equal treatment of

religious speech and to deviate from fifteen years of consistent

Supreme Court jurisprudence on the subject. The St. Tammany school

board was not required to open its facilities for the “welfare of

the public.” Once it did so, however, it could not arbitrarily

discriminate against religious speakers. We dissent from the

denial of rehearing en banc.