HAnsen v. Ann Arbor Public Schools 293 FSupp2d 780

[ArtSpitzer at aol.com]

In a message dated 4/19/04 4:58:49 PM, mstern at ajcongress.org writes:

>This is especially so since in the Boston parade cases,if
>memory serves,the ACLU did not support the right of parade organizers to
>exclude  marchers expressing a gay rights point of view.

The ACLU's amicus brief strongly supported the right of private parade 
organizers to exclude marchers expressing a gay rights (or any other) point of view. 
 I've pasted below an excerpt from the Summary of Argument section of the 
ACLU's brief.
Art Spitzer
ACLU 
Washington DC


To the extent that the Parade can appropriately be characterized as 
government sponsored, the First and Fourteenth Amendments prohibit any effort by the 
state to exclude marchers because of their sexual orientation or the content of 
their message. E.g., Schact v. United States, 398 U.S. 58 (1970); Minneapolis 
Star & Tribune v. Minnesota Comm'r of Revenue, 460 U.S. 575 (1983); Arkansas 
Writers' Project, Inc. v. Ragland, 481 U.S. 221 (1987); Simon & Schuster v. New 
York State Crime Victims Board, 502 U.S. ___, 112 S.Ct. 501, (1991). 
Furthermore, that sponsorship may be formal or informal. For example, if Boston elects 
to delegate perennial control over the Parade to the same nominally private 
group, and supports that specially favored group with significant state 
assistance, a state action finding may well be appropriate. Of. Edmonson v. Leesville 
Concrete Co., 500 U.S. 614 (1991); Adickes v. S.H. Kress, 398 U.S. 144 
(1970); Terry v. Adams, 345 U.S. 461 (1953). 

On the other hand, if the Parade cannot fairly be described as a 
government-sponsored event, a different set of constitutional principles apply. Under 
these circumstances, the Council's use of a traditional public forum for a parade 
is an expressive event whose message is necessarily determined by the parade's 
sponsors and not by the government. As an expressive event, moreover, it 
follows that the parade sponsors have a constitutional right to exclude marchers 
whose message conflicts with the message the sponsors desire to convey. Cf. 
Wooley v. Maynard, 430 U.S. 705; Pacific Gas & Electric Co. v. Public Utility 
Comm'n of California, 475 U.S. 1 (1986); West Virginia State Board of Education 
v. Barnette, 319 U.S. 624 (1943). 

While Boston may respond to a given sponsor's exclusionary behavior by 
granting supplemental permits to allow excluded marchers to organize a competing 
parade, once a private group has been duly authorized to sponsor a parade, the 
government may neither reject nor redefine the sponsor's message, even when the 
message the sponsor wishes to convey is an ugly one of bigotry and 
intolerance. Cf. R.A.V. v. City of St. Paul, 504 U.S. ___, 112 S.Ct. 2538 (1992). 

Thus, the lower courts erred in applying the state's public accommodations 
law and rejecting the Council's First Amendment claim if the 1993 Parade is 
regarded as a privately sponsored event, as the courts below evidently assumed.[8] 
At the outset, the Supreme Judicial Court should not have deferred, using the 
"clearly erroneous" standard, to the factual finding of the trial court that 
the Parade lacked a message. Pet.Cert. at B24, C15. 

Appellate courts must exercise de novo review over the record as a whole when 
a trial court's findings are contrary to the exercise of a First Amendment 
right. Bose Corp. v. Consumers Union, 466 U.S. 485 (1984). 
More fundamentally, the First Amendment demands that the sponsors of a parade 
be afforded broad deference in defining the message of their parade. When the 
parade's sponsors asserted an incompatibility between their intended message 
and the inclusion of a contingent of gay and lesbian marchers, the First 
Amendment rights of the sponsors were on a collision course with the wishes of the 
excluded marchers. Once that collision is acknowledged, the First Amendment 
requires that it be resolved in favor of the private sponsor of the parade.
 
While this Court has quite properly upheld anti- discrimination provisions 
that bar large multi-purpose organizations like eating clubs, labor unions, 
business groups and service organizations from denying access to women and racial 
minorities, a parade is an ephemeral association whose only purpose is 
communication. As with political parties, when an association's dominant purpose is 
expressive, the state may not force its members to associate against their 
will, especially when such forced association would alter the desired message. See 
Tashjian v. Republican Party, 479 U.S. 208 (1986). See also Roberts v. United 
States Jaycees, 468 U.S. 609, 627 (1984), id. at 631-38 (O'Connor, J., 
concurring); Democratic Party of the United States v. Wisconsin, 450 U.S. 107, 122 
(1981) (freedom to associate for the advancement of one's views "necessarily 
presupposes the freedom to identify the people who constitute the association, 
and to limit the association to those people only"); Eu v. San Francisco 
Democratic Committee, 489 U.S. 214 (1989). 

It is not clear, however, that the courts below accurately characterized the 
allegedly private nature of the sponsorship of the St. Patrick's Day Parade in 
Boston. Given the erroneous assumption of the courts below that the First 
Amendment rights of a private sponsor would not be violated by forcing the 
inclusion of marchers bearing an unwanted message, the Massachusetts courts were not 
compelled to explore the precise nature of the Parade's sponsorship.[9] But, 
if this Court rules that the First Amendment rights of a private parade 
sponsor would be violated by state- mandated inclusion of marchers bearing an 
unwanted message, whether or not the sponsorship is truly private becomes an issue 
of critical importance. 

Throughout its history, the Boston Parade has been closely bound up with the 
simultaneous celebration of a Massachusetts civic holiday -- Evacuation Day -- 
commemorating George Washington's first victory in the Revolutionary War. 
Indeed, until 1992, Boston openly granted its official imprimatur to the 
celebration of the combined holiday, including (but not limited to) a significant 
subsidy with taxpayer funds. The Parade's administration has been, and remains, 
closely tied to the Boston City government. Finally, for the past half-century, 
the permit for the Parade has been routinely allocated to the same nominally 
private sponsor. See p.2, supra. 

Because the nature of the Parade's sponsorship was not fully explored below, 
we respectfully suggest that the case be remanded for fact-finding and an 
initial legal consideration of the scope of governmental involvement in the 
sponsorship and administration of Boston's St. Patrick's Day Parade. See Smith v. 
Allwright, 321 U.S. 649 (1944); Terry v. Adams, 345 U.S. 461; Edmonson v. 
Leesville Concrete Co., 500 U.S. 614.