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 FIELDING, in his official

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

SMITH, in his official capacity as a member of the St. Tammany

Parish School Board; Also known as Smitty Smith; GREGORY J.

SAURAGE, in his official capacity as a member of the St. Tammany

Parish 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., in his official capacity as a member of the St. Tammany

Parish School Board; also known as Ronnie Panks, Sr.; ANTHONY

TEDESCO, also known as Tony Todesco, in his official capacity as a

member of the St. Tammany Parish School Board; RAY A. ALFRED, in

his official 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 member of the St. Tammany Parish School

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

the St. Tammany Parish School Board; LEONARD P. MONTELEONE, in his

official capacity as Superintendent of St. Tammany Parish School

Board; WILLIAM B. BRADY, in his official capacity as Administrative

Supervisor of St. Tammany Parish School Board,

Defendants-Appellants.

 

Appeals from the United States District Court

for the Eastern District of Louisiana

 

July 24, 2002
* Circuit Judge of the Eighth Circuit, sitting by designation.

** This case is decided by a quorum. 28 U.S.C. § 46(d).

1 Campbell v. St Tammany’s Sch. Bd., 206 F.3d 482 (5th Cir. 2000)

2 Campbell v. St. Tammany Parish Sch. Bd., 231 F.3d 937 (5th Cir. 2000)

(per curiam).

3 121 S. Ct. 2093 (2001).

4 Campbell v. St. Tammany’s Sch. Bd., 121 S. Ct. 2518 (2001).

2

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

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

PER CURIAM:**

In this First Amendment challenge to St. Tammany’s School

District’s facilities use policy, the defendants appealed to this

Court the district court’s award of summary judgment in favor of

plaintiffs Sally Campbell and the Louisiana Christian Coalition on

the grounds that the policy was unconstitutionally vague. We

reversed the district court and granted summary judgment for the

defendants.1 We denied panel rehearing and this Court denied

rehearing en banc.

2 The United States Supreme Court granted

application for writ of certiorari filed by the plaintiffs, vacated

our prior opinion, and ordered that the case be “remanded to the

United States Court of Appeals for the Fifth Circuit for further

consideration in light of Good News Club v. Milford Central

School,

3 533 U.S. 98 (2001).”4 

While the case was sub judice, the country and this court

suffered a great loss with the death of Judge Politz, leaving the
3

panel with only one active member of this court. The district

court has not had the opportunity to consider the case in light of

Good News Club, including any change in positions by the parties as

well as any further development of the record. Given these

circumstances we are persuaded that the best approach is to remand

to the district court for consideration in light of the intervening

decision of the Supreme Court. 

REMANDED.
4

JOHN R. GIBSON, Circuit Judge, concurring.

I concur with the decision to remand for

reconsideration in light of Good News Club v. Milford

Central School, 121 S. Ct. 2093 (2001), but wish to add

my views on the critical issue in this case.

There are significant differences between the facts

of Good News Club, Rosenberger v. Rector and Visitors of

the University of Virginia, 515 U.S. 819 (1995), and

Lamb's Chapel v. Center Moriches Union Free School

District, 508 U.S. 384 (1993), on the one hand, and this

case, on the other. In each of the three Supreme Court

cases, the governmental decision-maker characterized the

applicant's proposed activities as religious based on the

applicant's viewpoint, rather than the subject matter

presented, and impermissibly denied permission to use

governmental facilities on the strength of that

characterization. 
5

In Rosenberger, the University of Virginia paid

certain costs for student-run organizations that were

deemed to serve the educational purpose of the

university. News organizations were deemed educational.

However, otherwise eligible organizations were subject to

exclusion if their activities were "religious." Wide

Awake Publications published a newspaper with a Christian

editorial perspective. Because the University concluded

that Wide Awake's editorial perspective rendered it a

"religious activity," the University denied Wide Awake

moneys that it would otherwise have qualified for. The

Supreme Court held that the University's decision was

impermissible viewpoint discrimination, based on the

editorial perspective of the newspaper, not on its

subject matter. 515 U.S. at 830-31. 

Similarly, in Lamb's Chapel, New York law allowed

school boards to open school property for certain

enumerated uses, including social, civic and recreational

meetings and entertainments, and other uses pertaining to

the welfare of the community." 508 U.S. at 386. Lamb's
6

Chapel proposed to take advantage of this opportunity to

use school property to show a series of films discussing

child-rearing from a Christian perspective. The school

district denied the Chapel's application, saying, "This

film does appear to be church related and therefore your

request must be refused." Id. at 389. Again, the

governmental denial of access was viewpoint related,

rather than subject matter related: "The film series

involved here no doubt dealt with a subject otherwise

permissible under Rule 10, and its exhibition was denied

solely because the series dealt with the subject from a

religious standpoint." Id. at 394. 

Good News Club continued the same pattern. An

applicant was denied permission to use school property

because the government viewed the applicant's approach as

"in fact the equivalent of religious instruction itself."

121 S. Ct. at 2098. As in Lamb's Chapel and Rosenberger,

the governmental actor critically assessed the

applicant's use and decided that it did not fall within

the permitted uses of the limited forum because of the
7

religious aspect of an otherwise eligible activity. The

Supreme Court held that the school's decision was

impermissible viewpoint discrimination: "[W]e reaffirm

our holdings in Lamb's Chapel and Rosenberger that speech

discussing otherwise permissible subjects cannot be

excluded from a limited public forum on the ground that

the subject is discussed from a religious viewpoint."

Id. at 2102.

In contrast to these three Supreme Court cases, the

facts before us involve no need for the school officials

to impose their own characterization on the applicant's

proposed use. The policy in St. Tammany's prohibited use

for "religious services or religious instruction," among

other subjects, but specifically permitted use of school

facilities by outside groups "for the purpose of

discussing religious material or material which contains

a religious viewpoint." (Dist. Ct. op. at 2). As we

held in the original panel opinion, this policy

establishes a limited public forum. Campbell v. St.

Tammany's Parish Sch. Bd, 206 F.3d 482, 486-87 (5th Cir.
8

2000). Campbell sought permission to hold a "prayer

meeting," at which she proposed to "worship the Lord in

prayer and music." As to this much of Campbell's

proposal, there was no need for St. Tammany's to engage

in a critical assessment of how to characterize the

proposal. It was on its face a proposal to engage in

“religious services,” a subject matter for which the

school district had not made its property available.

This was not an otherwise eligible activity, which the

school district decided to exclude because of the

viewpoint from which ideas would be expressed.

Therefore, in this respect, Campbell's case differs

importantly from the Supreme Court cases on which she

relies.

It is true that Campbell's letter went on to say that

the prayer meeting would also involve discussion, prayer

and instruction with regard to family and political

issues. (Dist. Ct. op. at 3). This language, however,

does not bring the request as a whole within the subject
S:\OPINIONS\PUB\99\99-31071.CV2

July 23, 2002 (3:04pm) 9

matter of the limited public forum established by St.

Tammany's.