whether the policy discriminates on the basis of viewpoint. Jd. at 393. Instead, the question is
whether a speaker is prevented from making a statement from a religious perspective on-a topic
that other speakers are free to discuss. /d/. Here, for example, Immanuel Lutheran Church was
free to make a general statement of thanks for its neighbors, but was not allowed to say that it
gave that thanks to God. (R. 27, Joint Stip. Facts, | 35, 39.) Other speakers were free to make
statements of personal belief, such as the belief that Bootsie is the greatest cat ever, but the Tongs
were prevented from making a statement of personal belief because their statement made a
reference to Jesus. The Tongs’ statement was includible in the subject matter of the walkway but
was excluded because of its rcligious perspective.

We understand the CPD’s concerns that, if forced to include the Tongs’ inscription, it
will be forced to accept all religious messages, including some that may be offensive to the
community at large. (R. 32, Def.’s Resp. at 7.) The CPD can protect itself in the future from this
perceived problem, however, by creating a narrower definition of the “includible subject matter”
for its buy-a-brick programs. By limiting inscriptions to names of donors and their immediate
family, for example, and by clearly communicating those limitations to potential donors, the CPD
might avoid dilemmas such as the onc presented here.

We are less sympathetic to the CPD’s assertion that its prohibition on any religious
expression is necessary to “avoid an appearance of endorsing religious beliefs” in violation of the
Establishment Clause. (R. 32, Def.’s Resp. al 8.) Through buy-a-brick programs, the CPD
opens park walkways to the public at large, the diverse inscriptions are all gathered together in a
designated space, and many of the brick engravings identify the sponsor of the message on their

face. Given these circumstances, “(here would have becn no realistic danger that the community

19


Def.’s Resp. at 2; R. 30-2, Pls.’ Mot. at 15-17.) The CPD argues that the walkway is a nonpublic
forum or, at most, a limited public forum where speech restrictions must simply be reasonable
and viewpoint neutral. (R. 26-2, Def.’s Mot. at 6-8.) The Tongs argue that the walkway is a
designated public forum, subject to strict scrutiny. (R. 30-2, Pls.’ Mot. at 14.)

As discussed below, we find that the CPD’s exclusion of the Tongs’ brick bearing the
message ‘Jesus is the cornerstone” amounted to viewpoint discrimination. The CPD’s actions
therefore are impermissible regardless of the forum designation. It is, therefore, unnecessary for
us to resolve the forum designation issue here. DeBoer, 267 F.3d at 566-67 (declining to resolve
issue of forum designation where government engaged in impermissible viewpoint
discrimination).

A. Viewpoint Discrimination

The parties here disagree as to whether the CPD’s policy as applied to the Tongs’
proposed engraving is a regulation based on content or viewpoint. The CPD argues that, because
the brick walkway in Senn Park is either a nonpublic or limited public forum, its policy against
permitting any religious inscriptions on bricks is a permissible content-based restriction rather
than viewpoint discrimination. (R. 32, Def.’s Resp. at 7-11.) The CPD maintains that it
excludes messages from bricks that advocate a religious, political, or social idea, regardless of
the point of view. (R. 28, Def.’s Facts, 40.) The Tongs, on the other hand, argue that their
brick was excluded because of its religious viewpoint on the otherwise includible subject matter
of “the ‘mark’ that the donor wishes to leave{.]” (R. 30-2, Pls.’ Mot. at 19.)

As noted above, regardless of the nature of the forum at issue, governmental restrictions

based on the content of speech must be reasonable and viewpoint neutral. Cornelius, 473 U.S. at

13


The CPD admits that it has no written policy that lays out all of the rules for reviewing
proposed buy-a-brick engravings. (R. 34, Pls.’ Resp. to Def.’s Facts, 421.) However, the CPD
argues that its policy against accepting religious or political messages is made explicit through its
“practice and policy.” (R. 26-2, Def.’s Mot. at 4-5.) In its response brief, the CPD explains this
policy as follows:

The Park District “Donor Guidelines” apply to the portion of an engraving that

acknowledges the identity of the donor, and allow only the identity of the donor.

With respect to any engraving that is not intended to recognize the donor, the Park

District prohibits text that is obscenc or that malevolently portrays any racial or ethnic

group. And, with respect to such non-donor recognition engravings, the Park District

also prohibits text that endorses or advocates religion or a specific religious belief.
2K

[The CPD] does not apply its policy on naming parks, or its Public Art Guidelines

.+.. [I]t applies some of the same criteria to brick engravings as it does to naming

parks and public art.
(R. 32, Def.’s Resp. at 1) (emphasis in original). The CPD’s explanation of its purported policy
is not supported by the record in this case, even when all evidence is reviewed in the light most
favorable to the CPD.

i. The CPD’s Procedural Policy

The evidence demonstrates that the CPD has no procedural policy governing how
proposed buy-a-brick engravings are reviewed. The CPD admits that it does not review all
proposed engravings. (R. 33, Def.’s Resp. to Pls.’ Facts, 4 42, 49, 53.) It has not explained,
however, who decides whether proposed engravings will be reviewed and what criteria are used
to make that determination.

The Senn Park buy-a-brick program illuminates the CPD’s lack of any coherent

procedure for reviewing a proposed engraving. The president of the Senn Park Advisory Council

23


are permitted.” (/d.) The Donor Guidelines do not contain any express prohibition on religious
messages. (R. 33, Def.’s Resp. to Pls.’ Facts, 4] 41.)

The Donor Guidelines further state that “[p]laques, boulders, or other signage intended
primarily to commemorate or memorialize persons, activities, events, locations, or communities
for non-donor recognition purposes shall be considered ‘public art’ and shall be subject to the
Park District’s guidelines for acceptance of public art.” Jd.) The CPD’s guidelines for
acceptance of public art are located in the CPD Guidelines and Rules of Operation for Public Art
Work (“Public Art Guidelines”). (R. 29, Joint Exs., Ex. 9.) The Public Art Guidelines outline a
two-phase review procedure in which a proposed work of public art is reviewed by both the
CPD’s Committee on Recreation, Permits, Park Management and Related Institutions
(‘Recreation Committee”), and the CPD’s Board of Commissioners. (/d.) The Public Art
Guidelines dictate that the Recreation Committee shall not recommend acceptance of public art
works:

(1) depicting or commemorating individuals who are still living or who have not

been deceased for at least five years; (2) depicting or commemorating an event until

at least five years after the end of that event; (3) endorsing or advocating religion or

a specific religious belief; (4) depicting obscenity or that malevolently portrays,

demeans, or intimidates any racial or ethnic group; or (5) of inferior or substandard

workmanship.
Ud.)

The CPD maintains a separate policy for “Naming and Renaming of Parks and Park

Features” (“Naming Guidelines”), which lists criteria applicable to proposed names of parks or

park features. (R. 33, Def.’s Resp. to Pls.’ Facts, §j 40; R. 29, Joint Exs., Ex. 7.) The Naming

Guidelines state that “[nJo proposed park or park feature name shall (i) duplicate the name of


would think that the [CPD] was endorsing religion or any particular creed, and any benefit to
religion . . . would have been no more than incidental.” Lamb’s Chapel, 508 U.S. at 395.
Establishment Clause concerns do not justify “a refusal to extend free speech rights to religious
speakers who participate in broad-reaching government programs neutral in design.”
Rosenberger, 515 U.S. at 839. The Seventh Circuit has “regularly noted that maintaining a
neutral policy avoids establishment of religion difficulties.” Grossbaum, 63 F.3d at 593. Thus,
the CPD can best protect itself from these concerns by maintaining an even-handed approach to
its policy for brick inscriptions in its buy-a-brick programs.

At the heart of this matter lics the uncontested fact that the CPD invited the Tongs to
submit an inscription that expressed something that was important to them as a family, as long as
that sentiment was not a religious one. (R. 29, Joint Exs., Ex. 63.) In deciding to open up
broadly the subject matter of buy-a-brick program engravings to commemorative messages that
are important to a donor or the donor’s family, the CPD put itself in a position to play editor to
root out such expressions that include a religious viewpoint. This level of government
interference with private speech is exactly the kind of activity that the First Amendment is
designed to curtail. See Rosenberger, 515 U.S. at 845-46 (stating that policies that require
government officials to scan and interpret texts to “discern their underlying philosophic
assumptions respecting religious theory and belief... was a denial of the right of free speech and
would risk fostering a pervasive bias or hostility to religion, which could undermine the very
neutrality the Establishment Clause requires”), Thus, we find that the Tongs are entitled to
summary judgment based on the CPD’s unlawful viewpoint discrimination in violation of the

Tongs’ First Amendment rights.

20


The CPD’s conflicting explanations for how the Tongs’ submission violated its
substantive policy further highlights the inherent ambiguity in that policy. Steele explained that
the Tongs’ brick violates an implicit rule excluding “personal beliefs” from the bricks. (R. 30-3,
Pls.” Facts, Ex. 6, Steele Dep. at 67.) Stecle testified, however, that the inscription “No One
Could Have Better Friends than Those of Ehrler Park. Senator Ricky Henden” was acceptable
because it represented an opinion, nota belief.’ (/d. at 95-96.) Remarkably, Steele also
suggested that the Tongs’ submission violated the Donor Guidelines’ prohibition against
engravings including corporate identities because Jesus is a “corporate identity” for religion. (/d.
at 63-64). At the same time, the CPD contends that bricks such as “Senn Park Supporter -
Einstein Bros Bagels Andersonville,” “Handico, Inc. Chicago’s Premier Handyman Service,” and
“North Community Bank - Community is our middle name,” cach of which the CPD allowed in
buy-a-brick walkways, do not contain “corporate identities” in violation of that rule. (R. 33,
Def.’s Resp. to Pls.’ Facts, {| 52.) Clearly, those who the CPD designated to explain its buy-a-
brick policy are confused as to its standards, if they are aware of any policy at all.

Ultimately, the CPD’s legal arguments amount to an effort to cobble together the pieces
of a scattered policy. But post hoc explanations of an unclear policy cannot revive a
constitutionally defective policy. Lakewood, 486 U.S. at 758. Because the CPD policy is
unwritten, and is applied in an incoherent and inconsistent manner, the CPD effectively grants
unfettered discretion to whichever CPD staff member—if any—first comes into contact with a
buy-a-brick application. The CPD has simply not governed its own decision-making by “narrow,

objective, and definite standards,” Deboer, 267 F.3d at 573 (internal quotations omitted), and its

*Steele admitted later that this message could be construed as a personal belief. Jd.

26


where “it simply cannot be said that there are any narrowly drawn, reasonable and definite
standards guiding the hand” of the government administrator. Forsyth County vy. The Nationalist
Movement, 505 U.S. 123, 132-33 (1992) (internal quotations and citations omitted). The
prohibition on unbridled discretion applies “even if the discretion and power are never actually
abused.” City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 757 (1988). Where “the
lack of specificity in the procedure and the amount of discretion vested in the official lends itself
to manipulation by the City . . . [a court] cannot presume that officials will act in good faith and
allow standards not explicitly contained in the ordinance.” Weinberg, 310 F.3d at 1046 (citing
Lakewood, 486 U.S. at 770).

“[T)he prohibition against unbridled discrction is a component of the viewpoint-
neutrality requirement.” Southworth v. Bd. of Regents of the Univ. of Wis. Sys., 307 F.3d 566,
579 (7th Cir. 2002). Limits on official discretion are necessary to prevent “the risk of self-
censorship, where the plaintiff may edit his own viewpoint or the content of his speech to avoid
governmental censorship; and . . . the risk that the decisionmaker will use its unduly broad
discretion to favor or disfavor speech based on its viewpoint[.]” /d. at 579. A level of specificity

in prior restraints is essential because “post hoc rationalizations by the licensing official and the

use of shifting or illegitimate criteria are far too easy, making it difficult for courts to determine
in any particular case whether the licensor is permitting favorable, and suppressing unfavorable,
expression.” Lakewood, 486 U.S. al 758. While the limits on official discretion do not
necessarily have to be set forth in a written policy, implicit or unwritten limits must be made

clear by “textual incorporation, binding judicial or administrative construction, or well-

established practice.” /d. at 770.

22


the CPD opened the walkway to community members for the limited purpose of providing
“commemorative messages” recognizing donations. (R. 28, Def.’s Facts, 31.) But it is
undisputed that the CPD’s interpretation of “commemorative messages” was expansive enough
to include inscriptions that “express something important” to the donor’s family. (R. 29, Joint
Exs., Ex, 63.)

In Lamb’s Chapel and Good News Club, the Supreme Court found that showing films on
child rearing from a Christian perspective and meetings involving prayer and Bible study fell
within the subject matter of “social and civic activities.” Good News Club, 533 U.S. at 109;
Lamb's Chapel, 508 U.S. at 393-94. Our task is to determine whether the message “Jesus is the
cornerstone” falls within the subject matter of commemorative messages that express something
important to the donor’s family. The record reveals that the CPD had an expansive view of the
term “commemorative messages.” A CPD representative testified that the brick inscriptions may
include the donor’s identity and “community messages that may be encouraging in a general
sense to the broader public[.]” (R. 30-3, Pls.’ Facts, Ex. 6, Steele Dep. at 58.)

‘A review of the brick engravings that the CPD allowed under this policy reinforces the
CPD’s broad definition of commemorative messages. Nelson Brown, one of the CPD lawyers
who reviewed the Senn Park proposals, stated that the inscriptions “Respect Nature, Seek
Understanding Truman & Emily,” “Plenty of grace be to this place, the Weyandt family,” and “If
you build it they will play. The Cvetas family” were all messages that fell within the CPD’s
policy and were includible in the walkway. (R. 30-3, Pls.’ Facts, Ex. 10, Brown Dep. at 43-44.)
The CPD also allowed the following “commemorative messages” to appear in the Senn Park

walkway: “Playing Should Be FUN 1528-30 W. Thorndale Condo Association,” “Bootsie Albert

17



Thomas also contacted the Tongs to determine whether they would be willing to change
their proposed inscription. (Jd. 37.) The Tongs indicated that they would not change their
proposal. On March 31, 2003 Brown sent the Tongs a letter stating that the CPD would not
accept their brick application. (/d. {§| 38, 40; R. 29, Joint Exs., Ex. 63.) Brown’s letter stated
that “the [CPD] cannot accept any donors’ commemorative bricks that have a religious message.”
(R. 29, Joint Exs., Ex. 63.) The letter did not refer to any specific CPD policy, but
communicated the CPD’s concern that installing a brick inscribed with a religious message in
public property could violate the Establishment Clause. (/d.) Brown’s letter encouraged the
Tongs to edit their proposal to include a personal expression devoid of religious content,
Specifically, Brown invited the Tongs to “reconsider the message you wish to place on your
ceramic brick and replace your current message with a non-religious one that expresses
something important to your family.” (/d.)

In approximately April 2003, the engraved bricks were installed in the Senn Park
walkway. (R. 27, Joint Stip. Facts, {| 43.) The Senn Park walkway included the Immanuel
Lutheran Church’s brick with the revised inscription, but did not include the Tongs’ brick. (Ud.
{{ 39, 43.) The Tongs wrote to Brown on April 11, 2003, informing him that they disagreed with
the CPD’s Establishment Clause position and indicating their intent to file suit if the CPD did not
accept their brick for the Senn Park Walkway. (R. 29, Joint Exs., Ex. 64.) On May 6, 2003,
Brown responded, stating that the CPD would “stand on its original decision rejecting this
message.” (R. 29, Joint Ex. 65.) The Tongs then filed the current action seeking declaratory and

injunctive relief. (R. 1; R. 20-2.)


than the donor “could be rejected by people invoived with carrying out the guidelines. They
would say that’s not appropriate and they would tell the advisory council most likely that’s not
appropriate.” (/d., Ex. 9, Megquier Dep. at 32.) Megquier did not identify who “the people
involved with carrying out the guidelines” are. The parties agree, however, that the CPD
Enhancement Committee does not regularly review proposed buy-a-brick engravings and that the
CPD law department reviews some, but not all, proposed buy-a-brick engravings. (R. 33, Def.’s
Resp. to Pls.’ Facts, 4] 49, 53.)
B. The Senn Park Buy-a-Brick Program

Senn Park is owned and supervised by the CPD and is located in Chicago’s Edgewater
neighborhood. (R. 27, Joint Stip. Facts, {j 8.) In approximately June 1999, Kathryn “Kate”
Thomas resurrected the previously-defunct Senn Park Advisory Council, became President of the
Council, and approached the CPD about generating funds to refurbish Senn Park.’ (R. 33, Def.’s
Resp. to Pls.’ Facts, {{] 61-63.) Thomas proposed a Senn Park buy-a-brick program to raise the
necessary funds, and the CPD approved that program. (/d. {] 65-66.) The engraved bricks
generated through the Senn Park buy-a-brick program would be placed at the entryway to Senn
Park. (R. 28, Def.’s Facts, 31.) A primary purpose of the Senn Park walkway is to provide a
safe path leading into the park. (/d.) That walkway “was opened to residents of the community
for the limited purpose of allowing commemorative messages recognizing donations.” (Id.)

After receiving the CPD’s approval to run the Senn Park buy-a-brick program, Thomas

contacted the CPD’s Community Outreach Manager of the Department of Intergovernmental

?Thomas was a volunteer on Senn Park’s behalf and has never been employed by the
CPD. (R. 27, Joint Stip. Facts, {| 11.) The record demonstrates that Thomas has made significant
personal contributions of time and advocacy for the betterment of Senn Park.

6


another park or park feature within the City of Chicago; (ii) endorse or advocate religion or a
specific religious belief; (iii) have obscene connotations; or (iv) malevolently portray, demean or
intimidate any racial or ethnic group.” (R. 29, Joint Exs., Ex. 7.)

The CPD has no written policy that describes how, if at all, the Donor Guidelines, Public
Art Guidelines, or Naming Guidelines apply to proposed engravings for buy-a-brick programs.
(R. 42, Pls.’ Resp. to Def.’s Facts, | 21.) While the CPD maintains the right to review all
proposed brick engravings, it has no written policy that outlines what procedures are used to
review proposed brick engravings or which CPD staff are responsible for that review. (/d.; R.
27, Joint Stip. Facts, 19.) The CPD’s unwritten policy is to deny brick engravings that “contain
(a) obscene material or connotations; (b) endorse or advocate religion or a specific religious
belief; (c) endorse a specific political party or belief; or (d) malevolently portray, demean or
intimidate any racial or ethnic group,” and to prohibit engravings “of a political, religious or
social nature.” (R, 28, Def.’s Facts, 431.)

ACPD staff member designated by the CPD to explain the formulation of its brick
approval policy testified that the CPD decides whether brick engravings will be accepted based
on the recommendations of a subgroup known as the Enhancement Committee. (R. 30-3, Pls.’
Facts, Ex. 6, Steele Dep, at 89.) A member of the Enhancement Committee, Robert Megquier,
testified that if a brick engraving acknowledged someone or something other than the donor, it
would become a “public art issue” and would go to the Enhancement Committee for review and
recommendation. (/d., Ex. 9, Megquier Dep. at 19, 30-31.) He also testified that no proposed
brick engraving has ever come to the Enhancement Committee for review. (Id., Ex. 9, Megquier

Dep. at 32, 39, 45-46.) Megquier explained that brick engravings that refer to something other


Drennan Best Cat Ever!;” “Peace on Earth;” and “To Sen. Carol Ronen Thanks for your
commitment & vision From the Early Childhood Network of Edgewater & Rogers Park.’*
(R. 30-3, Pls.” Facts, Exs. 3 & 4.)

As revealed throughout the record, the CPD’s intent to open the Senn Park walkway to
commemorative messages extended to statements of praise for other people and animals,
statements of personal belicf, and expressions of goodwill. Community members whose
commemorative messages included sentiments about the greatness of their pets, their desire for
“Peace on Earth,” or their wish that “plenty of grace” be with Senn Park all fell within the
included subject matter. The buy-a-brick program was open to the personal statements of belief
that “Bootsie Albert Drennan [is the] Best Cat Ever!”and that “Playing should be FUN.” Under
the policy as effectuated by the CPD, the Tongs could have submitted an engraving stating that
“Bootsie is the cornerstone.” Because the Tongs wished to commemorate their personal belief
that Jesus is the cornerstone, however, their application was rejected. The CPD therefore
violated the Tongs’ First Amendment rights by excluding their religious viewpoint on the
otherwise included subject matter.

The CPD argues that there is no viewpoint discrimination here because its policy
“prohibits all text that endorses religion or a specific religious belief.” (R. 32, Def.’s Resp. at 9.)
This argument, however, mischaracterizes the relevant inquiry. In Lamb's Chapel, the Supreme

Court noted that the fact that the school’s policy treated all religions the same does not resolve

*The record also reveals that the CPD has allowed brick engravings in other Chicago
parks with the following commemorative messages: “Laughter is the music of the soul”; “A park
is but a canvas to the imagination Roscoe Village Neighbors”; and “No one could have better
friends than those of Ehrler Park Senator R Hendon.” (R. 30-3, Pls.’ Facts, Ex. 1, Creswell Aff.,

14)
18


Facts, 31.) Also included in the applications was the Tongs’ proposal for an engraved brick,
which is the subject of the present suit. The Tongs’ submission read as follows: “Missy, EB &
Baby Tong-Jesus is the cornerstone. Love, Mom and Dad.” (/d. 432.)

After receiving these applications, Thomas created several spreadsheets containing the
donor names and proposed engravings, and e-mailed them to Koreman. (R. 33, Def.’s Resp. to
Pls.’ Facts, {| 74-75.) Koreman’s predecessor at the CPD had instructed Koreman to review the
proposed engravings and to deliver them to the CPD’s law department if she “was worried about
anything.” (Id. 77.) Koreman, however, was not aware of the guidelines that the CPD applies
to determine whether to accept or reject an engraving. (R. 30-3, Pls. Facts, Ex. 7, Koreman Dep.
at 25.) Koreman printed all of Thomas’s spreadsheets containing all of the proposed engravings
for the Senn Park buy-a-brick program and delivered them personally to Nelson Brown, senior
counsel of the CPD law department. (R. 33, Def.’s Resp. to Pls.’ Facts, {J 11, 75.)

Cc The CPD’s Decision to Reject the Tongs’ Proposed Inscription

Brown reviewed the proposed engravings and determined that the only two problematic
proposals were those submitted by the Tongs and the Immanuel! Lutheran Church. (Jd. 4] 83-84.)
Brown then asked Thomas to determine whether they were willing to change the text for their
proposed engravings to exclude their religious references, After Thomas explained the situation
to the Immanuel Lutheran Church, it agreed to remove the reference to God from its proposal.
The revised inscription read “Your neighbor Immanuel Lutheran Church—With thanks for our

neighbors.” (R. 27, Joint Stip. Facts, 4] 35.)

> Michael O’Neil was the CPD’s project manager for Senn Park until the summer of
2002, when he was replaced by Elizabeth Koreman. (R. 27, Joint Stip. Facts, j 26.)

8


submitted the buy-a-brick applications to Koreman, the CPD project manager for Senn Park. (R.
27, Joint Stip. Facts, 429.) Koreman had been instructed by her predecessor to review the
proposed engravings and to turn them over to the law department if she “was worried about
anything.” (R. 33, Def.’s Resp. to Pls.’ Facts, | 77.) Koreman testified that she did not know
what the CPD’s policy was for rejecting or accepting bricks. (R. 30-3, Pls.” Facts, Ex. 7,
Koreman Dep. at 25.) That the CPD lacks a procedure ensuring that all proposed engravings are
reviewed by officials who are equipped to apply ils substantive policy creates a substantial risk
that, in some cases, its policy would not be applicd at all.

The CPD also has failed to explain who is responsible for applying its substantive policy
once it decides to review a proposed engraving. Some of the CPD’s representatives explained
that the authority to make recommendations about whether to accept an engraving lies at least in
part with the members of the Enhancement Committee. (/d., Ex. 5, Garcia Dep. at 68; Ex. 6,
Steele Dep. at 89.) However, onc member of that committee pointed out that, at least since 2001,
the Enhancement Committee has never actually reviewed a brick. (/d., Ex. 9, Megquier Dep. at
18, 32, 39, 45-46.) Indeed, the Tongs’ message was not reviewed by the Enhancement
Committee or any other CPD committee, (R. 33, Def.’s Resp. to Pls.’ Facts, {| 82), but was
reviewed and rejected by the CPD law department, (R. 27, Joint Stip. Facts, {{] 33, 40). The CPD
law department does not, however, review all proposed buy-a-brick engravings. (R. 33, Def.’s
Resp. to Pls,’ Facts, {| 53.)

ii. The CPD’s Substantive Policy
The standards that the CPD actually applicd when reviewing bricks are as troublesome as

its procedure for determining which bricks to review. In DeBoer, the Seventh Circuit found that

24


Mime Order Form (06097)

_ United States District Court, Northern District of Hlincis
ma
& on peste Sodee Ruben Castillo “tnissigned Suge
4 9B NUMBER 03 C 5075 DATE 4/29/2004
4 CASE Robert Tong, et al. vs. The Chicago Park District
TITLE
{In the following box (a) indicate the party filing the motion, e.g,, plaintiff, defendant, 3rd party plaintiff, and (6) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
ad Oo Filed motion of [ use listing in “Motion” box above.]
(2) Qa Brief in support of motion due
(3) a Answer brief to motion due. . Reply to answer briefdue___.
(4) o Ruling/Hearing on setfor at
(5) a Status hearing[held/continued to] {set for/re-set forjon__—_sset for at
(6) q Pretrial conference[held/continued to] [set for/re-set for]on____—ssetfor_ at.
(7) a Trial{set for/re-set for]on___at
(8) oO {Bench/Jury trial] [Hearing] held/continued toa
(9) o This case is dismissed {with/without} prejudice and without costs[by/agreement/pursuant to]

OPRCP4(m) Cl Local Rule 41.1 CFRCP41(a\(1) DO FRCP41(a\(2).

qo) =f {Other docket entry] Enter Memorandum Opinion and Order. Defendant Chicago Park District’s
motion for summary judgment [26-1] is denied. Plaintiffs Robert and Mildred Tongs’ motion for
summary judgment [30-1] is granted. Judgment is entered in favor of the plaintiffs and against the

defendant.

(i) @f {For further detail see order attached to the original minute order.}

No notices required, advised in open court.

ices required.
No notices req umber of notices

“ Docuiiient.
‘Number.

Notices mailed by judge's staff.
Notified counsel by telephone. AY

V { Docketing to mail notices.

Y | Mail AO 450 form. (|

Copy to judge/magistrate judge.

dare mailed notice

courtroom
RO deputy’s
initials

Date/time received in
central Clerk’s Office mailing deputy initials



on all counts of the Tongs’ Second Amended Complaint. (R. 26-1; R. 30-1.) Viewing all facts
in the light most favorable to the CPD, we find that the CPD’s refusal to accept the Tong’s brick
based on its religious expression violated the Free Speech Clause. Because we hold that the
CPD’s actions violated the First Amendment, we need not address the Tongs’ Free Exercise and
Equal Protection claims.
Violation of the Free Speech Clause

It is well-settled that private religious speech is protected by the First Amendment.
Capital Square Review & Advisory Bd. y. Pinette, 515 U.S. 753, 760 (1995). The extent to
which the government can exercise control over its property for the purpose of regulating
protected speech depends on the nature of the relevant forum. Cornelius v. NAACP Legal Def. &
Educ. Fund, Inc., 473 U.S. 788, 800 (1985). Under the Supreme Court’s forum analysis, we
must first identify the nature of the forum at issue and then decide whether the government’s
justifications for excluding the identified speech satisfy the requisite standard for that forum. Jd.
Traditionally, the Supreme Court has recognized three separate forum designations: the
nonpublic forum, the designated public forum, and the public forum. Jd. More recently, the

Supreme Court also acknowledged a fourth category: the limited public forum. See, e.g., Good

Constitution. Nevitt v. Langfelder, 623 N.E.2d 281, 284 (Ill. 1993) (state and federal equal
protection claims determined under same standards); People v. DiGuida, 604 N.E.2d 336, 342-43
(ll. 1992) (lockstep doctrine applies to free speech claims); Mefford v. White, 770 N.E.2d 1251,
1260 (Ill. App. Ct. 2002) (lockstep doctrine applies to free exercise claims). The lockstep
doctrine dictates that Illinois courts should construe the Illinois Constitution in the same manner
as the United States Supreme Court construes similar provisions of the Federal Constitution.
DiGuida, 604 N.E.2d at 342. We will review the Tongs’ claims under the Federal and Illinois
Constitutions side-by-side, bearing in mind that the Free Speech clause of the Illinois

Constitution provides even broader protection of speech than does the Federal Constitution. See
id.

il


LEGAL STANDARDS

We will grant a motion for summary judgment where “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ, P. 56(c). In resolving a summary judgment motion,
the Court will neither decide factual disputes nor weigh conflicting evidence, but instead will
limit its inquiry to whether a genuine issue of material fact exists for trial. E.E.O.C. v. Sears,
Roebuck & Co., 233 F.3d 432, 436 (7th Cir. 2000). In doing so, we will consider all facts in the
light most favorable to the non-moving party. To avoid summary judgment, however, the
nonmoving party must submit competent and specific facts showing that there is a genuine issue
for trial. Fed. R. Civ. P. 56(e). When both parties move for summary judgment, the Court will
determine “the burden of proof that each party would bear on an issue at trial,” and “require that
party to go beyond the pleadings and affirmatively to establish a genuine issue of material fact.”
Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997) (citing Celotex Corp. v.
Catrett, 477 US. 317, 324 (1986)).

ANALYSIS

In their Second Amended Complaint, (R. 14-2), the Tongs claim that the CPD’s refusal to
accept their proposed engraving for the Senn Park buy-a-brick program because of its religious
content violated the Free Speech, Free Exercise, and Equal Protection clauses of both the United

States and Illinois Constitutions.* Both parties claim that they are entitled to summary judgment

‘Neither party briefed any argument based on the Illinois Constitution claims. We
presume this is because Illinois courts adhere to the “lockstep doctrine” in resolving claims
brought under the Free Speech, Free Exercise, and Equal Protection clauses of the Mlinois

10


Community Affairs, Robert Steele, and asked him for information on how to administer the buy-
a-brick program. In response, Steele sent Thomas a copy of the CPD’s Donor Guidelines. (Jd.
{{ 6, 67-68; see also R. 29, Joint Exs., Ex. 4.) Steele did not send Thomas a copy of the Public
Art Guidelines or the Naming Guidelines. (R. 33, Def.’s Resp. to Pls.’ Facts, {{] 67-68.) The
Senn Park project manager, Elizabeth Koreman, instructed Thomas to create a spreadsheet of the
donors and proposed engravings for the Senn Park buy-a-brick program and to provide that
spreadsheet to the CPD for approval before sending the proposals to the brick vendor for
engraving. (/d. | 74.)

Thomas circulated approximately 1500-2000 hard copies of advertisements and
applications for the Senn Park buy-a-brick program to community members, and posted a copy of
the application on the Internet. (Jd. {{{ 69-70.) The CPD did not review those advertisements
before Thomas circulated them. (R. 27, Joint Stip. Facts, {22 .) The Senn Park buy-a-brick
advertisements indicated that applicants could “Leave Your Mark on Senn Park” and “Choose
Your Words.” (R. 29, Joint Exs., Ex. 2.) In response to these solicitations, the Senn Park
Advisory Council received a number of applications for buy-a-brick donations.

The Senn Park buy-a-brick applications included proposals for bricks reading: “Peace on
Earth;” “Proudly supporting the children of Edgewater State Senator Carol Ronen;” “Bootsie
Albert Drennan Best Cat Ever!;” “Plenty of grace be to this place. The Weyandt Family;”
“Respect Nature Seek Understanding Truman & Emily;” “Manchester Commons Condo
Association 2002;” and “If you build it, they will play. The Cvetas Family.” (R. 29, Joint Exs.,
Exs, 11-13.) Among the applications was a proposed engraving which read as follows: “Your

neighbor Immanuel Lutheran Church-With thanks to God for our neighbors.” (R. 27, Joint Stip.


B. Prior Restraint

Even if we found that the CPD’s refusal to accept the Tongs’ proposed engraving were
constitutionally permissible, the CPD’s policy for buy-a-brick engravings is nevertheless
vulnerable to a First Amendment attack as a prior restraint on speech. The Tongs argue that the
CPD’s policy for reviewing proposed cngravings—or lack thercof-—amounts to an
unconstitutional prior restraint on speech because it confers unfettered discretion on the CPD to
decide whether to accept or reject a submission. (R. 30-2, Pls.’ Mot. at 1-14.) We agree.

“A prior restraint exists when a law gives public officials the power to deny use of a
forum in advance of actual expression.” Weinberg v. City of Chi., 310 F.3d 1029, 1045 (7th
Cir.), cert. denied, 124 S. Ct. 78 (2003) (internal quotations omitted), The CPD’s policy is a
prior restraint, because it allows officials to deny expression before it takes place. (R. 27, Joint
Stip. Facts, | 19.) We must decide whether the standards guiding the CPD officials who oversee
the approval of brick engravings are sufficiently narrow and definite to survive First Amendment
scrutiny. See Weinberg, 310 F.3d at 1045.

A prior restraint is unconstitutional where the government grants itself unfettered

discretion to determine whether to allow certain speech. /. at 1045. Unbridled discretion exists

“Contrary to the CPD’s arguments, we need not find that the Senn Park walkway is a
public forum in order to apply the prior restraint doctrine. (R. 32, Def.’s Resp. at 12.) The
Seventh Circuit’s decision in DeBoer illustrates that whether a regulation governing access to a
forum is an unconstitutional prior restraint is a distinct inquiry from the forum determination. 27
F.3d at 567, 573. Other circuits have conducted a prior restraint analysis to an ordinance
governing a nonpublic forum. See Griffin, III v. Sec'y of Veteran Affairs, 288 F.3d 1309, 1323
(Fed. Cir.), cert. denied, 573 U.S. 947 (2002); Sentinel Communications Co. v. Watts, 936 F.2d
1189, 1199 n.11 (11th Cir. 1991). Asa result, we may examine the CPD’s buy-a-brick policy to
determine if it confers unfettered discretion on decision-makers and thus acts as an
unconstitutional prior restraint

21


policy demonstrates a “lack of specificity in the procedure and the amount of discretion vested in
the official[s},” Weinberg, 310 F.3d at 1046 (citing Lakewood, 486 U.S. at 770). Thus, its policy
is an unconstitutional prior restraint in violation of the First Amendment and the Tongs are
entitled to declaratory and injunctive relief.’ Accordingly, we order the CPD to include a brick in
the Senn Park walkway bearing the following inscription: “Missy, EB & Lexi Tong—Jesus is the
cornerstone. Love, Mom and Dad.”
CONCLUSION

For the reasons stated above, we deny Defendant Chicago Park District’s motion for
summary judgment, (R. 26-1), and grant Plaintiffs Robert and Mildred Tongs’ motion for
summary judgment, (R. 30-1). While we recognize the difficulty the Chicago Park District faced
in creating substantive guidelines that would provide community members with incentives to
donate to buy-a-brick programs, the government cannot broadly invite the public to express
something of importance to them and then exclude such an expression because of its religious
viewpoint. The Clerk of the Court is instructed, pursuant to Federal Rule of Civil Procedure 58,
to enter judgment in favor of Plaintiffs Robert and Mildred Tong and against Defendaat Chicago

Park District. Khe.
ENTERED:

Judge Ruben Castillo
Dated: April 29, 2004 United States District Court

‘The Court notes that both partics also claim that they are entitled to summary judgment
on Plaintiffs’ Free Exercise and Equal Protection claims under the United States and Illinois
Constitutions. We decline to address these claims because we have already found as a matter of
law that the Tongs are entitled to declaratory and injunctive relicf based on the CPD’s violation
of their First Amendment rights.

°The Tongs indicated in their April 11, 2003 letter to the CPD that the baby referred to in
their original application had been born, and they wished to update their proposal by substituting
the child’s name, Lexi, for the word “Baby.” (R. 29, Joint Exs., Ex. 64.)

27



A. Buy-a-Brick Programs Generally

One method that advisory councils use to generate funds for Chicago parks is to solicit
donations through “buy-a-brick” programs. Buy-a-brick programs provide members of the
public with the opportunity to purchase a brick engraved with an inscription chosen by the donor.
The engraved bricks are then installed in a designated walkway located in a Chicago park. (Id.
23-24.) An advisory council must obtain the CPD’s approval to implement a buy-a-brick
program and CPD project managers participate in the programs from start to finish. (/d. {[4 34-
35.) The CPD retains the right to review and approve proposed brick engravings, and makes the
final decision as to whether a particular engraving will be accepted or rejected. (/d. {{] 36-37.)

The CPD has no written policy specific to buy-a-brick programs that outlines the
procedure or criteria that the CPD uses to determine whether to accept or reject a proposed brick
engraving. (R. 42, Pls.’ Resp. to Def.’s Facts, 21.) However, the CPD does have a written
policy entitled “Guidelines for Plaques, Markers and Donor Recognition in Parks” (the “Donor
Guidelines”), which applies “[w]here the primary purpose of a sign, plaque, or marker is to
acknowledge donors. ...” (R. 29, Joint Exs., Ex. 4.) On their face, some of the criteria in the
Donor Guidelines are permissive, while others are mandatory. On the one hand, the Donor
Guidelines state that “[w]henever possible, the sign should acknowledge a group, rather than the
individuals comprising that group[,]” and “[w]here possible, text on signage should recite the
significant community service/public contributions of individuals and groups, rather than
personal or individual accomplishments. . .” (/d.) On the other hand, the Donor Guidelines state
that “[wJhen the proposal is to include names as an integral element of a larger installation, e.g.,

on pavers in a plaza or on the base of a sculpture. . . [n]o logos, seals or other corporate identities


806. While content-based discrimination may be permissible where it preserves the purposes of
a limited forum, viewpoint discrimination is “presumed impermissible when it is directed against
speech otherwise within the forum’s limitations.” Rosenberger, 515 U.S. at 829-30. The
Supreme Court has clarified the distinction between content-based restrictions and viewpoint
discrimination as follows:

(a]lthough a speaker may be excluded from a nonpublic forum ifhe wishes to address

a topic not encompassed within the purpose of the forum . .. or ifhe is not amember

of the class of speakers for whose especial benefit the forum was created . . . the

government violates the First Amendment when it denies access to a speaker solely

to suppress the point of view he espouses on an otherwise includible subject.

Cornelius, 473 U.S. at 806. In other words, ifthe Tongs’ proposed inscription fell within the
included subject matter for which the Senn Park walkway was opened, the CPD cannot exclude
the message because of its religious viewpoint on that subject matter.

The Supreme Court’s discussions of viewpoint discrimination in two cases involving
exclusion of religious speech from public school property are instructive here. See Good News
Club, 533 U.S. 98; Lamb’s Chapel v. Cir. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993).
In Lamb's Chapel, an evangelical church challenged a public school policy allowing school
facilities to be used for social, civic, and recreational meetings but disallowing use of the
facilities for religious purposes. 508 U.S. at 386-87. The defendant schoo! district twice rejected
the plaintiff's application to use school facilities to show a film series discussing Christian family
values and addressing issues such as child rearing and family conflict from a Christian
perspective. /d. at 388-89. The school district stated that it rejected the application because the

activity “appear[ed] to be church-related” and thus violated the district’s uncontested policy of

prohibiting use of school facilities for religious purposes. /d. at 389. The Supreme Court found

14


of any particular group, entity or organization.” /d. at 562. The Village construed the “civic
program or activity” clause to exclude any cvent involving religious activity. Jd. at 567. Citing
this policy, the Village rejected the plaintiffs’ application to use the village hall for a National
Day of Prayer assembly. /d. at 562. The Seventh Circuit held that the National Day of Prayer
assembly qualified as a “civic activity” and that the Village’s denial of plaintiffs’ application
amounted to viewpoint discrimination. /d. at $68. The court reasoned that by construing the
assembly as religious activity rather than civic activity, “the Village has discriminated against the
speech of those of its citizens who utilize these forms of expression to convey their point of view
on matters relating to the government.” /d.

The question of whether the CPD engaged in viewpoint discrimination when it rejected
the message “Jesus is the cornerstone” hinges on whether that speech falls within the included
subject matter to which the bricks in the Senn Park walkway were opened. Cornelius, 473 U.S.
at 806. This inquiry is complicated by the CPD’s lack of a written policy describing the
appropriate subject matter for buy-a-brick program engravings, despite the fact that the CPD has
used buy-a-brick programs since the early 1990's. (R. 42, Pls.’ Resp. to Def.’s Facts, 4] 21; R.
33, Def.’s Resp. to Pls.’ Facts, | 26.) The absence of a CPD policy defining the scope of the
subject matter does not save them from the viewpoint discrimination inquiry, because “[t]he
absence of an explicit list of permissible subjects upon which discourse is permissible . . , does
not mean that there is no ‘otherwise includible subject’ for discussion in the forum.” Grossbaum
vy. Indianapolis-Marion County Bldg. Auth., 63 F.3d 581, 590 (7th Cir, 1995).

The parties agree that one purpose of the Senn Park walkway was to raise funds for park

refurbishment. (R. 40, Pls.’ Resp. to Def.’s Add’! Facts, 57.) We have deemed admitted that

16


CPD have filed cross-motions for summary judgment. (R. 26-1, Def.’s Mot.; R. 30-1, Pls.’ Mot.)
At issue in this case is whether the CPD’s decision to reject the Tongs’ proposed engraving
violated the Tongs’ Free Speech, Free Exercise, and Equal Protection rights under the United
States and Illinois Constitutions. We conclude, for the reasons set forth herein, that the CPD’s
actions violated the Tongs’ First Amendment rights. Therefore, we deny the CPD’s motion, (R.
26-1), and grant the Tongs’ motion, (R. 30-1).

RELEVANT FACTS'

The CPD is a governmental unit that is empowered by Illinois law to supervise and
control the operation of parks in Chicago and to create regulations in furtherance of that power.
(R. 27, Joint Stip. Facts, {| 5-6.) The CPD is also empowered to create park “advisory councils.”
(id. 13.) Advisory councils are groups of volunteers that work with CPD staff to help ensure
that Chicago parks function effectively. (R. 33, Def.’s Resp. to Pls.’ Facts, {§ 13-17.) With the
CPD’s permission and oversight, advisory councils can plan and carry out fundraisers using park

property in order to generate money for park improvements. (Jd. {§ 21-22.)

‘In its reply brief, the CPD argues that several statements of material fact set forth in its
Local Rule 56.1 statement of uncontested facts should be deemed admitted because the Tongs
failed to deny them in the manner prescribed by Local Rule 56.1. (R. 36-1, Def.’s Reply at 1-3.)
We will not hesitate to deem facts admitted where the local rule’s requirements have not been
met, especially because the Court has explained in detail what we expect from summary
judgment practitioners under local rule 56.1. See Malec v. Sanford, 191 F. R.D. 581, 582-587
(N.D. Ill. 2000). Accordingly, paragraphs 21 and 31 of the CPD’s Statement of Uncontested
Facts are deemed admitted in their entirety. Paragraph 40 of the CPD’s Statement of
Uncontested Facts is deemed admitted in part; its legal conclusions will be ignored. Jd. at 583.
We will also ignore paragraph 21 of the CPD’s Statement of Uncontested Facts because the
information conveyed by the CPD’s citations does not support the factual assertions in that
paragraph. /d. (“Factual allegations not properly supported by citation to the record are
nullities.”)

i)


the confusion among government officials as to the policy’s meaning created “too great a risk
that it could be used to engage in prohibited censorship of speech.” 267 F.3d at 574. Asin
Deboer, the CPD’s buy-a-brick policy “is not given structure or substance by any written
standards and its meaning escapes even the [CPD] officials charged with administering and
interpreting [it].”” Jd. Although the CPD contends that it is limited in part by the Public Art
criteria, (R. 32, Def.’s Resp. at 1), CPD representatives gave conflicting and confusing
explanations of how that policy is carried out.

The record is replete with examples of the CPD’s confusion. At various points, CPD
representatives testified that an engraving could be rejected if it is “not appropriate,”
“distasteful,” or would create a “hazard.” (R. 30-3, Pls.” Facts, Ex. 9, Megquier Dep. at 32; Ex.
6, Steele Dep. at 102, 64-65.) Megquicr testified that the engraving “Club Lucky, 1824 West
Wabansia, Good Food & Fun” does not violate a policy prohibiting advertising on bricks because
“it is so generic that it is not really a form of advertising.” (/d., Ex. 9, Megquier Dep. at 69-70.)
He also testified that the Donor Guidelines apply to “Greetings from Lily, The Wonder Dog”
because “in the spirit of donating money to a park, that is probably not completely unreasonable
that somebody would say my cat donates fifly bucks or my dog donates a hundred bucks.” (/d.,
Ex. 9, Megquier Dep. at 76-77.) Stecle testified that he would “[a]bsolutely” reject an inscription
that did not appeal to “‘a significant proportion of residents,” and that “Best Cat Ever” would not
be of “great appeal, because there may be a lot of dog lovers in that area.” (/d., Ex. 6, Steele
Dep. at 111-12.) CPD’s counscl testified that “Plenty of grace be to this place, The Weyandt
family” and “Respect nature, seek understanding” were acceptable inscriptions, although the

CPD prohibits “social” messages. (/d., Ex. 10, Brown Dep. at 26, 43-44.)

25


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ROBERT TONG and MILDRED TONG,
Plaintiffs,
No. 03 C 5075

Vv.

THE CHICAGO PARK DISTRICT, an
Illinois unit of local government,

)
)
)
)
)
)
) Judge Ruben Castillo
)

)

)

paewerTed

APR 3.0 2004

Defendant.

MEMORANDUM OPINION AND ORDER

This case presents important issues of First Amendment law and highlights the friction
that the Free Speech and Establishment Clauses generate when they come into close contact. In
2002, the defendant Chicago Park District (“CPD”) approved and oversaw a park fundraiser in
which community members were invited to purchase a brick that would be engraved with an
inscription chosen by the donor and included in a walkway in a neighborhood park. Plaintiffs
Robert and Mildred Tong (the “Tongs”’) submitted a proposal for a brick engraving that included
the phrase “Jesus is the cornerstone.” The CPD rejected the Tongs’ proposal based on its
religious content, and the Tongs filed the present action seeking declaratory and injunctive relief,
and nominal damages. The CPD argues that the brick walkway is a nonpublic or limited public
forum and that its policy of rejecting proposed engravings with religious content was reasonable
and viewpoint neutral. The Tongs argue that the CPD had no coherent policy for reviewing
proposed brick engravings and that CPD officials had unbridled discretion in analyzing whether
to accept or reject a brick. The Tongs further argue that the CPD’s decision to reject their

proposed engraving was based on unconstitutional viewpoint discrimination. The Tongs and the


News Club v. Milford Cent. Sch., 533 U.S. 98, 106-07 (2001).

A public forum exists where a property “by long tradition or by government fiat” has
been “devoted to assembly and debate.” Perry Educ. Ass'n v. Perry Local Educators’ Ass'n, 460
US. 37, 45 (1983). Government-owned parks and sidewalks are quintessential examples of
traditional public fora. Doe v. Small, 964 F.2d 611, 618 (7th Cir. 1992). Government regulation
of speech in a public forum is subject to strict scrutiny, and content-based exclusions will only be
upheld where they are “necessary to serve a compelling state interest” and are “narrowly drawn
to achieve that end.” Perry, 460 U.S. at 45. A designated public forum exists where the
government intentionally opens an otherwise nonpublic forum to public discourse. Ark. Educ.
Television Comm'n y. Forbes, 523 U.S. 666, 677 (1998). Strict scrutiny also applies to speech
restrictions in a designated public forum. /d. Ina nonpublic forum, government regulation of
speech is permissible as long as the content-based restrictions are reasonable and viewpoint
neutral. Cornelius, 473 U.S. at 800. The Supreme Court has also recognized a fourth type of
forum designation: the limited public forum. Good News Club, 533 U.S. at 106-07. A limited
public forum exists where the government reserves access to its property “for certain groups or
for the discussion of certain topics.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S.
819, 829 (1995). Content-based restrictions in a limited public forum “must be viewpoint-
neutral and reasonable in light of the purpose served by the forum.” DeBoer v. Vill. of Oak Park,
267 F.3d 558, 566 (7th Cir. 2001).

The relevant forum for First Amendment analysis depends on the access sought by the
speaker. Cornelius, 473 U.S. at 801. The relevant forum in this case is the Senn Park walkway

where the buy-a-brick program bricks were installed, rather than the park as a whole. (See R. 32,

12


that child rearing and family values were otherwise included under the category of social and
civic meetings. Jd. at 393-94. The Court held that the school district engaged in impermissible
viewpoint discrimination by rejecting the plaintiff's application simply because its presentation
on an otherwise includible subject would have been given from a religious perspective. Id.

In Good News Club, the plaintiff again challenged a school district’s policy that made
school facilities available for social, civic, and recreational meetings, but prohibited their use for
religious purposes. 533 U.S. at 102-03. The plaintiff wished to use school facilities to conduct
meetings during which children would hear Bible stories, learn Bible verses, and engage in
prayer. Id. at 103. The school district admitted that its school-use policy permitted groups such
as the Boy Scouts to use school facilitics to teach moral values and character development. Jd. at
108. The school district defended its exclusion of the plaintiff by arguing that their activities
amounted to religious instruction. /d. The Supreme Court found that even activities that are
“decidedly religious in nature’ can{] also be characterized properly as the teaching of morals and
character from a particular viewpoint.” /d. at 111. The Court held that the school district’s
exclusion of the Good News Club’s activities constituted unconstitutional viewpoint
discrimination because other groups were allowed to use the facilities to teach morals and
character from a secular viewpoint. /d. at 112.

More recently, the Seventh Circuit applied the reasoning in Lamb’s Chapel and Good
News Club to strike down a similar policy for public use of a village hall. DeBoer, 267 F.3d at
568-69. The plaintiffs in DeBoer challenged the Village of Oak Park’s use policy that required
that: “(1) the event provide a civic program or activity that ‘benefits the public as a whole’ and

(2) that an event ‘not be based on or must not promote or espouse the philosophy, ideas or beliefs

15