United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 99-2334

No. 99-2501

___________

Michael Cuffley; Knights of the *

Ku Klux Klan, Realm of Missouri, *

*

Appellees/Cross-Appellants, *

*

v. *

*

Joe Mickes, in his official capacity as *

Chief Engineer of the Missouri *

Department of Transportation; *

Stephen Knobbe, in his official *

capacity as District Engineer of *

Missouri Department of * Appeal from the United States

Transportation, St. Louis Metro * District Court for the

District; Stacey Ann Armstrong, in * Eastern District of Missouri.

her official capacity as Roadside *

Management Supervisor of the *

Missouri Highway and Transportation *

Department; Thomas M. Boland; *

Robert E. Jones; Edward Douglas; *

S. Lee Kling; James W. Gamble; *

William E. Gladden, in their official *

capacities as commissioners of the *

MO Highway and Transportation *

Commission, *

*

Appellants/Cross-Appellees. *

*

--------------------------- *
1

 The Honorable Stephen N. Limbaugh, United States District Judge for the

Eastern District of Missouri.

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Arkansas State Highway Commission; *

United States of America. *

*

Amici on Behalf of Appellant. *

___________

Submitted: January 11, 2000

Filed: March 31, 2000

___________

Before WOLLMAN, Chief Judge, BOWMAN, and HANSEN, Circuit Judges.

___________

BOWMAN, Circuit Judge.

The Knights of the Ku Klux Klan, Realm of Missouri, and Michael Cuffley in

his capacity as its Unit Recruiter (collectively, the Klan) brought this action for

injunctive and declaratory relief from the decision of the Missouri Highway and

Transportation Commission (the State) to deny its application to participate in the

State's Adopt-A-Highway program. On cross motions for summary judgment, the

District Court1 granted judgment for the Klan. We affirm.

I.

This is the second appeal in the Klan's effort to participate in the Adopt-AHighway program. In the first case, the State, without taking official action on the

Klan's application, sought a declaratory judgment that it lawfully could prevent the Klan

from adopting a highway. See Missouri ex rel. Missouri Highway & Transp. Comm'n

v. Cuffley, 927 F. Supp. 1248 (E.D. Mo. 1996) (Cuffley I). We dismissed that action
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because we lacked jurisdiction over the State's request for essentially an advisory

opinion on its plan to deny the application. See Cuffley I, 112 F.3d 1332 (8th Cir.

1997) (finding no federal question jurisdiction and no Article III case or controversy).

At the time, we emphasized that "we cannot determine what reasons the State actually

will choose to support its denial." Id. at 1338.

The State now has acted on the Klan's application. In an August 14, 1997, letter

to the Klan, the State gave five reasons for denying its application:

[1] The Knights of the Ku Klux Klan does not adhere to all state and

federal nondiscrimination laws in that it discriminates on the basis of race,

religion, color and national origin. [2] The Knights of the Ku Klux Klan

has a history of unlawfully violent and criminal behavior. [3] 42

USC2000(d)4a(I)(A) [Title VI of the Civil Rights Act of 1964] prohibits

Missouri Department of Transportation from conferring a benefit to the

Knights of the Ku Klux Klan because of the Knights' discriminatory

practices, and granting the application would confer such a benefit in

contravention of federal law. [4] Executive Order 94-03 prohibits state

agencies from allowing discriminatory practices on state facilities and

prohibits contracting with an organization that discriminates, and,

therefore, prohibits the Knights of the Ku Klux Klan from participating in

this program. [5] The district has placed a moratorium on adoptions on

interstate highways within the City of St. Louis.

Letter from Stephen Knobbe to Michael Cuffley (Aug. 14, 1997). This time the Klan

filed suit. On cross motions for summary judgment, the District Court granted

summary judgment for the Klan. See Cuffley v. Mickes, 44 F. Supp. 2d 1023 (E.D.

Mo. 1999) (Cuffley II). We now have a "concrete record for judicial consideration"

and can decide the issues pressed before us. Cuffley I, 112 F.3d at 1338.
2

 After de novo review of the State's argument that, based on a case from the

Fifth Circuit, the Klan is collaterally estopped from arguing that its constitutional rights

are violated by a state's refusal to allow them to adopt a highway, we entirely agree

with the analysis of the District Court on this issue. See Cuffley II, 44 F. Supp. 2d at

1026 n.2. In Texas v. Knights of the Ku Klux Klan, 58 F.3d 1075 (5th Cir. 1995), the

Fifth Circuit did not decide that the Klan had no right to adopt a highway. Instead, that

court concluded that the state's reason for denying the Klan's application to adopt a

portion of highway outside a public housing project—to prevent the Klan from

intimidating residents and frustrating a federal desegregation order—were reasonable

and viewpoint neutral. Here, the State does not argue that the Klan's adoption of the

highway will have such an effect. And like the Fifth Circuit, we do not decide whether

the Klan has the right to adopt a highway. We only decide that the State may not deny

the Klan's application to adopt a highway based on the Klan's views.

3

 The District Court summarily disposed of the Klan's claim that the State

violated the Equal Protection Clause by "conditioning" access to the Adopt-AHighway program based on the applicant's views. The Klan filed a cross appeal to

preserve this issue. Whether this claim arises under the Equal Protection Clause or the

First Amendment, it is clear that the State may not deny access to the Adopt-AHighway program based on the applicant's views. Thus, unlike the District Court's

decision in this case and this Court's decision in Knights of Ku Klux Klan, Realm of

Missouri v. Curators of the University of Missouri, __ F.3d __, 2000 WL 189834 (8th

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II.

We review a summary judgment decision de novo.2 "The party seeking summary

judgment must establish the absence of a genuine issue of material fact and his

entitlement to judgment as a matter of law." Artis v. Francis Howell N. Band Booster

Ass'n, 161 F.3d 1178, 1180 (8th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S.

317, 322-23 (1986)). We may affirm the decision of the District Court on any basis

supported by the record. See id.

We believe the undisputed facts conclusively demonstrate that the State

unconstitutionally denied the Klan's application based on the Klan's views.3
Cir. Feb. 17, 2000), we need not discuss whether the Klan is "speaking" for the

purposes of the First Amendment or whether the Adopt-A-Highway program is a public

forum. Moreover, the issues we face here are fundamentally different than those

discussed in this Court's recent decision that a publicly-owned radio station is not

obligated to accepted the Klan's sponsorship of a National Public Radio program. That

case rested largely on the unique context of public broadcasting, in which editorial

discretion to select programming and sponsors looms large. And unlike this case, the

radio station had legitimate reasons for its refusal to accept the Klan's sponsorship, and

there was absolutely no showing of viewpoint discrimination. 

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From the very beginning of this controversy when the Klan first applied to adopt

a highway in May 1994, the State treated the Klan differently from the vast majority

of applicants. The deposition of Stacy Armstrong, the statewide coordinator for the

Adopt-A-Highway program and designated to speak on behalf of the State in the initial

litigation, is remarkable for its candor in this regard.

Q. . . . Now, somebody at some point must have made a decision that

this was the kind of case, this Klan application was the kind of case, that

must be referred for special treatment, whether it be by higher-ups or it be

by the court to make a decision; right?

A. Right.

. . .

A. The Adopt-A-Highway coordinator for the district called me. . . .

Q. Now, is it fair to say that his calling you about an individual

application to ask your guidance as to what to do is something that's out

of the ordinary?

. . .

A. I'd say yes.

Q. It connotes a special situation?

A. Right.

Deposition of Stacy Armstrong at 57-59 (Apr. 12, 1995). And it is undisputed that this

disparate treatment was based on the State's perception of the Klan's beliefs.
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Q. And what is it about the Klan application that he considered to be

a special situation?

A. It was just who it was from and what they wanted on the sign.

Q. It had to do with what he perceived to be their beliefs?

A. As a group, yes.

Q. And what they were advocating?

A. Right.

. . .

Q. And that the basis for your decision to treat this organization's

application for further review was based on your perception of what the

group believed and what they advocated?

A. Right.

Id. at 59-61. There are repeated admissions from the State's designee on these points,

including the surprising admission that the State thinks it has the right to deny an

application on the basis of the applicant's beliefs.

Q. So you believe as part of your job that you should examine a

group's beliefs to see if there's something about what they believe in and

what they advocate to see if they may be qualified or disqualified from the

program?

A. I think that we have a right to look at what they stand for and what

they believe.

Q. And if they don't stand for something that is acceptable to the

department, you believe that you can disqualify them from the program;

is that correct?

. . .

A. . . . I think the department has the right to deny somebody.

Q. On the basis of their beliefs?

A. On the basis of their beliefs, yes.

Id. at 19-20.

The State since has filed a "curative" affidavit from Armstrong. Armstrong now

maintains that the State does not consider the beliefs of the applicant, but simply
4

 These regulations were filed and became effective in 1995 while the first action

was pending and after Armstrong's original deposition. The regulations provide in

relevant part:

(1) Eligible Adopters. Eligible adopters include civic and nonprofit

organizations, commercial and private enterprises and individuals. The

program is not intended as a means of providing a public forum for the

participants to use in promoting name recognition or political causes. The

commission reserves the right to limit the number of adoptions for a single

group.

(2) Acceptance of Application. The commission will have sole

responsibility in determining whether an application is rejected or

accepted and determining what highways will or will not be eligible for

adoption.

(A) The commission may refuse to grant a request to participant if,

in its opinion, granting the request would jeopardize the program, be

counterproductive to its purpose or have undesirable results such as

increased litter, vandalism or sign theft.

(B) Applicants must adhere to the restrictions of all state and

federal nondiscrimination laws. Specifically, the applicant must not

discriminate on the basis of race, religion, color, national origin or

disability. Such discrimination disqualifies the applicant from

participation in the program.

(C) Applicants with a history of unlawfully violent or criminal

behavior will be prohibited from participation in the program.

Mo. Code Regs. Ann. tit. 7, § 10-14.030 (1995) 

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applies Adopt-A-Highway program regulations to determine whether an applicant is

eligible to adopt.4 We do not believe, however, that Armstrong's deposition evinces

the kind of mistake and confusion necessary to allow her contradictory affidavit to

create an issue of fact on these points. See Camfield Tires, Inc. v. Michelin Tire Corp.,

719 F.2d 1361, 1365-66 (8th Cir. 1983). Accordingly, we reject her affidavit and

conclude that there is no question that the State treated the Klan differently from the
5

 This "unconstitutional conditions" doctrine is not limited to valuable

government benefits or even benefits at all. The Supreme Court has held that a legal

entitlement to a position or program is not necessary in order to assert an

unconstitutional conditions claim. See Rutan v. Republican Party, 497 U.S. 62, 72

(1990) (citing Perry, 408 U.S. at 596-98). At least two circuits have applied this

analysis to volunteer governmental positions. See Andersen v. McCotter, 100 F.3d

723, 727 (10th Cir. 1996); Hyland v. Wonder, 972 F.2d 1129, 1135 (9th Cir. 1992),

cert. denied, 508 U.S. 908 (1993).

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vast majority of applicants based on the State's perception of the Klan's beliefs and

advocacy.

To be sure, a justification for further review of an application does not

necessarily equate with the justification for denial of an application. Nevertheless,

absent a convincing and constitutional reason for the denial, the evidence leaves us with

but one conclusion: that the State denied the Klan's application based on the Klan's

beliefs and advocacy. For the last fifty years, the Supreme Court has made it clear that

such a denial is unconstitutional:

[E]ven though a person has no "right" to a valuable governmental benefit

and even though the government may deny him the benefit for any number

of reasons, there are some reasons upon which the government may not

rely. It may not deny a benefit to a person on a basis that infringes his

constitutionally protected interests—especially, his interest in freedom of

speech. For if the government could deny a benefit to a person because

of his constitutionally protected speech or associations, his exercise of

those freedoms would in effect be penalized and inhibited. This would

allow the government to "produce a result which [it] could not command

directly." Such interference with constitutional rights is impermissible.

Perry v. Sindermann, 408 U.S. 593, 597 (1972) (quoting Speiser v. Randall, 357 U.S.

513, 526 (1958) (alteration in Perry)).5
6

 In its letter to the Klan, the State cited Title VI of the Civil Rights Act of 1964

and Missouri Executive Order 94-03 as separate reasons for denying the Klan's

application. We discuss those reasons below.

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As we have noted, in its letter to the Klan, the State offered five reasons to

support its denial of the application. We need not address the State's fifth purported

reason, the moratorium within the City of St. Louis, because the Klan amended its

application to adopt a stretch of Interstate 55 south of the City of St. Louis.

Accordingly, this aspect of the controversy is now moot. We discuss the State's first

four reasons below.

The State's first purported reason for denying the Klan's application essentially

amounts to the State's contention that the Klan does not satisfy one of the regulations

issued by the State shortly after the Klan first submitted its application: "Applicants

must adhere to the restrictions of all state and federal nondiscrimination laws.

Specifically, the applicant must not discriminate on the basis of race, religion, color,

national origin or disability. Such discrimination disqualifies the applicant from

participation in the program." Mo. Code Regs. Ann. tit. 7, § 10-14.030(2)(B). There

is no question that the Klan discriminates in membership on the basis of race, religion,

color, and national origin. The question is whether any state or federal

nondiscrimination law applies to the Klan. The State does not point to any specific

nondiscrimination law that the Klan is violating.6 Even assuming the existence of such

a law, we think its direct application to the Klan in this case would violate the Klan's

freedom of political association. There seems little question that requiring the Klan to

accept non-"Aryans" would significantly interfere with the Klan's message of racial

superiority and segregation. Cf. New York State Club Ass'n v. City of New York, 487

U.S. 1, 13 (1988) ("It is conceivable, of course, that an association might be able to

show that it is organized for specific expressive purposes and that it will not be able to

advocate its desired viewpoints nearly as effectively if it cannot confine its membership

to those who share the same sex, for example, or the same religion."); Board of Dirs.
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of Rotary Int'l v. Rotary Club, 481 U.S. 537, 548 (1987) (considering whether

"admitting women to Rotary Clubs will affect in any significant way the existing

members' ability to carry out their various purposes"); Roberts v. United States Jaycees,

468 U.S. 609, 627 (1984) (considering whether "admission of women as full voting

members will impair a symbolic message conveyed by the very fact that women are not

permitted to vote"); but cf. Runyon v. McCrary, 427 U.S. 160, 176 (1976) ("[I]t may

be assumed that parents have a First Amendment right to send their children to

educational institutions that promote the belief that racial segregation is desirable . . . .

But it does not follow that the practice of excluding racial minorities from such

institutions is also protected by the same principle.").

Requiring the Klan essentially to alter its message of racial superiority and

segregation by accepting individuals of other races, religions, colors, and national

origins in order to adopt a highway would censor its message and inhibit its

constitutionally protected conduct. We find Invisible Empire of the Knights of Ku Klux

Klan v. Mayor of Thurmont, Md., 700 F. Supp. 281 (D. Md. 1988), persuasive in this

regard. In Thurmont, the court held that a town's nondiscrimination condition on public

parades violated the Klan's freedom of expressive association. The court surveyed the

trilogy of Supreme Court private association cases cited above and concluded: 

If ever there was a case where the membership and the message

were coextensive, it is here. . . . The KKK has nothing to do with the

distribution of goods and services, nor with business contacts or

advantages. The group's primary purpose is to advocate one main

concept—that blacks and whites should not mix. Allowing blacks to

march with the KKK would change the primary message which the KKK

advocates.

Id. at 289. 
7

 Even this analogy is too favorable to the State's position. At oral argument, the

State admitted that, subject to safety restrictions, anyone can pick up trash along

Missouri highways, including highways adopted by others. That is, the Klan's adoption

of a highway does not in any way prohibit others from cleaning along that portion of

the highway.

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The State's response to Thurmont, and indeed, one of its broader arguments, is

that, unlike in Thurmont where the Klan would simply march along a public street, here

the State would enter into some kind of "prohibited" relationship with the Klan. As we

understand its argument, the State fears that it would violate the Fourteenth Amendment

by allowing the Klan to adopt a highway. The State cites Burton v. Wilmington

Parking Authority, 365 U.S. 715 (1961), for the proposition that discrimination by a

group associated with the State is, in effect, discrimination by the State and thus meets

the state action requirement of the Fourteenth Amendment. But even Burton does not

extend so far as to reach the relationship at issue here. In Burton, the Supreme Court

found state action when a private coffee shop, operating within a publicly owned

building, refused service to a black customer. What we have here, however, is more

like a State owned coffee shop offering service to a group of customers who want a

table for only their white friends.7 The state action doctrine does not extend so far.

The State simply cannot condition participation in its highway adoption program on the

manner in which a group exercises its constitutionally protected freedom of association.

Accordingly, we conclude that this reason for refusing participation, like the viewpoint

reason admitted in deposition, constitutes an unconstitutional condition on the Klan's

participation in the Adopt-A-Highway program.

The State's second purported reason, that the Klan has a history of unlawfully

violent and criminal behavior, is based on another of the State's new regulations:

"Applicants with a history of unlawfully violent or criminal behavior will be prohibited

from participation in the program." Mo. Code Regs. Ann. tit. 7, § 10-14.030(2)(C).

All of the evidence, however, supports the Klan's contention that this reason is

pretextual. 
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As we read the regulation, anyone who has ever committed any criminal act,

from murder and mayhem to joyriding and jaywalking, is ineligible to participate in the

program. Were the State actually to enforce this regulation with any regularity, we

have little doubt the Adopt-A-Highway program would soon have few adopters.

Recognizing this problem, the State is not really sure how the regulation should be

applied:

Q. All right. Well, tell me what criminal behavior is?

A. Criminal behavior is behavior that violates the law.

Q. Any law?

A. I would say that is what it would intend.

Q. Have you ever gotten a ticket for speeding?

A. No, I haven't, but I wouldn't call that a history.

Q. Well, it says—all right. If you've got 10 tickets for speeding,

would that be a history?

A. It would depend on the time frame.

Q. Okay. Drunk driving? DWI? BAC?

A. I'm not sure that would. It could.

Q. It could. Depending on?

A. I can't give you a criteria.

Q. How about antitrust? Archer Daniels Midland pleaded guilty to

criminal antitrust violations, federal criminal antitrust violations. Are they

excluded from adopting a highway?

A. I would say if there was any question, I would seek legal counsel

on it.

Deposition of Joseph A. Mickes at 52 (Mar. 20, 1998) (emphasis added). That the

State does not know how the regulation applies in practice to the Adopt-A-Highway

program is not surprising because the State has never applied the regulation to anyone

other than the Klan. Even though the regulation became effective in July 1995, barely

a year after the Klan filed its application, the State has never asked an applicant a single

question about criminal history, has never done a single investigation of criminal
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history, and has no idea whether any of the participants in the program have such a

history. At oral argument, the State backed further away from the incredible breadth

of the regulation, arguing that it was intended to address violent criminal behavior such

as that committed by the Klan in the past. The State's argument makes even clearer

what was already obvious: that this regulation was intended to target only the Klan and

its views.

The State's third purported reason for denying the Klan's application is that

allowing the Klan to participate in the Adopt-A-Highway program would violate Title

VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (1994), and could cause the

State to lose federal highway funding. Under Title VI, "[n]o person in the United

States shall, on the ground of race, color, or national origin, be excluded from

participation in, be denied the benefits of, or be subjected to discrimination under any

program or activity receiving Federal financial assistance." Id.;see also id. § 2000d-4a

(defining "program or activity" to include all operations of State government

departments); id. § 2000d-1 (authorizing termination of federal funding for programs

that violate Title VI). 

Title VI clearly does not apply directly to prohibit the Klan's discriminatory

membership criteria. The Klan is not a direct recipient of federal funds nor are federal

funds earmarked for the Klan. See National Collegiate Athletic Ass'n v. Smith, 525

U.S. 459, 468 (1999) ("Entities that receive federal assistance, whether directly or

through an intermediary, are recipients within the meaning of Title IX; entities that only

benefit economically from federal assistance are not."). There is not even an allegation

here that the State pays for the Adopt-A-Highway program with earmarked federal

funds. The Klan thus is not subject to Title VI.

The question remains, however, whether Title VI prohibits the State from

allowing the Klan to participate in the Adopt-A-Highway program. Under U.S.

Department of Transportation regulations, the State, as a recipient of federal funds,
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"may not, directly or through contractual or other arrangements, on the grounds of race,

color, or national origin . . . [d]eny a person an opportunity to participate in the program

through the provision of services or otherwise or afford him an opportunity to do so

which is different from that afforded others under the program." 49 C.F.R. §

21.5(b)(1)(vi) (1999). The United States, as amicus curiae, argues that, in allowing the

Klan to adopt a highway, the State would violate the regulatory prohibition on any

arrangement that bars individuals from participating in a program on the basis of race.

In essence, the United States argues that allowing the Klan to adopt a portion of

highway would deny other people an opportunity to pick up litter on that portion of the

highway on the same terms as the Klan. Once again, we note that the Klan's adoption

of a highway does not in any way prohibit others from cleaning along that portion of

the highway. But more to the point, we believe the United States interprets the

"program" at issue too narrowly. Neither the Klan nor the State would operate a

subprogram on the Klan's adopted stretch of highway; instead, the Klan simply would

be one of many participants in the overall Adopt-A-Highway program. So long as the

State does not deny anyone an opportunity to adopt a highway on an improper basis,

the State does not violate Title VI. The Klan, as one of many voluntary participants in

the program, is free to determine its own membership.

The State's fourth purported reason for denying the Klan's application is that the

State would violate Article VII of the State's Executive Order 94-03 (Jan. 14, 1994) by

allowing the Klan to adopt a highway. That Order provides:

Every department shall offer its services to the public without

discrimination. No State facility shall be used to promote any

discriminatory practice, nor shall any department become a party to any

agreement which permits any discriminatory practice prohibited by this

order, state or federal law.

First, as we described above in the Title VI context, offering a service to a group that

discriminates is not equivalent to discrimination in the offering of that service. Second,
8

 During deposition testimony and at oral argument, the State maintained that the

membership criteria of the Knights of Columbus did not violate its regulations because

"anyone could become Catholic." We think this argument requires no response.

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the State admitted repeatedly in depositions that it does not view the erection of an

Adopt-A-Highway sign as an endorsement or promotion of the adopter. In fact, the

State's own regulations, conveniently drafted after the Klan applied, provide that "[t]he

program is not intended as a means of providing a public forum for the participants to

use in promoting name recognition or political causes." Mo. Code Regs. Ann. tit. 7,

§ 10-14.030(1) (emphasis added). Third, the State does not point to any part of the

Order or any state or federal law that prohibits the Klan from discriminating in its

membership criteria. Accordingly, Executive Order 94-03 does not prohibit the State

from allowing the Klan to adopt a highway, and the State's fourth and last reason fails.

Not only do the State's discrimination-related reasons not make sense, but there

is also evidence that, like the criminal-history reason, these three reasons are entirely

pretextual. The State admitted repeatedly in deposition testimony that it does not ask

organizations that apply to the program about their membership criteria nor does it

investigate the applicants' membership criteria. Instead, the State claims to rely solely

on common knowledge. But the State has never denied the application of any other

group on the grounds of discriminatory membership. A quick glance down the list of

participants in the Adopt-A-Highway program, however, reveals many adopters that

have discriminatory membership criteria. For example, it is commonly known that the

Knights of Columbus, a venerated service organization that has chapters adopting many

stretches of highway across the State, limits its membership to Catholic men.8 Once

again, the State's actions speak louder than its words.

The State's purported reasons for denying the Klan's application are so obviously

unreasonable and pretextual that, in the end, we are left only with the admitted reason

the State was motivated to so carefully scrutinize the Klan's application as an
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explanation for the denial: that the State disagrees with the Klan's beliefs and advocacy.

Nevertheless, the First Amendment protects everyone, even those with viewpoints as

thoroughly obnoxious as those of the Klan, from viewpoint-based discrimination by the

State. "Such interference with constitutional rights is impermissible." Perry, 408 U.S.

at 597.

There are better ways of countering the Klan's repellent philosophy than by the

State's engaging in viewpoint-based discrimination. In a myriad of constitutionally

sound ways, state officials and private citizens alike may oppose the Klan's racially

divisive views and express disapproval of those views in the strongest terms. But

viewpoint-based exclusion of any individual or organization from a government

program is not a constitutionally permitted means of expressing disapproval of

ideas—even very poor ideas—that the government disfavors. We affirm. 

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.