No. 99-2334

IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

MICHAEL CUFFLEY AND THE
KNIGHTS OF THE KU KLUX KLAN
Plaintiffs-Appellees,

v.

JOE MICKES, ET AL.,
Defendants-Appellants.

ON APPEAL FROM A JUDGMENT OF THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI

BRIEF FOR THE UNITED STATES AS
AMICUS CURIAE SUPPORTING APPELLANTS

BILL LANN LEE                                        DAVID O. OGDEN
   Acting Assistant Attorney General                Acting Assistant Attorney General

MARK L. GROSS                                      EDWARD L. DOWD
JENNIFER LEVIN                                        United States Attorney
   Attorneys, Appellate Section
   Civil Rights Division                                   MARK B. STERN
                                                                      (202)514-5089
Of Counsel:                                                  MATTHEW M. COLLETTE
NANCY E. MCFADDEN                             (202) 514-4214
   General Counsel                                           Attorneys, Appellate Staff
   Department of Transportation                       Civil Division, Room 9552
KAREN E. SKELTON                                  Department of Justice
   Chief Counsel                                              Washington, D.C. 20530-0001
   Federal Highway Administration

IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

No. 99-2334

MICHAEL CUFFLEY AND THE
KNIGHTS OF THE KU KLUX KLAN
Plaintiffs-Appellees,

v.

JOE MICKES, ET AL.,
Defendants-Appellants.

ON APPEAL FROM A JUDGMENT OF THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI

BRIEF FOR THE UNITED STATES AS
AMICUS CURIAE SUPPORTING APPELLANTS

TABLE OF CONTENTS

INTEREST OF THE UNITED STATES 1

STATEMENT OF THE ISSUES 2

STATEMENT OF THE FACTS 3

A. The Missouri Adopt-A-Highway Program 3

B. The Initial Application And The Decision
In Cuffley I 5

C. Missouri's Administrative Decision And
The Current Litigation 7

ARGUMENT 11

I. TITLE VI OF THE CIVIL RIGHTS ACT
PROHIBITS MISSOURI FROM ALLOWING
THE KLAN TO PARTICIPATE IN THE
ADOPT-A-HIGHWAY PROGRAM 11

A. The Statutory And Regulatory Framework
Of Title VI 12

B. Missouri Would Violate Title VI If It Granted
the Klan's Application To Participate In The
Adopt-A-Highway Program Because The Klan's
Membership Practices Deny Non-Whites The
Opportunity to Participate In The Program 15

II. THE DISTRICT COURT ERRED IN APPLYING
A PUBLIC FORUM ANALYSIS SINCE THE
ADOPT-A-HIGHWAY PROGRAM DOES NOT
INVOLVE THE REGULATION OF SPEECH 21

CONCLUSION 30

CERTIFICATE OF SERVICE

BRIEF FORMAT CERTIFICATE PURSUANT TO FED. R. APP. P. 32(a)(7)

TABLE OF AUTHORITIES

Cases: Page:

Arkansas Ed. Television Comm'n v. Forbes,

523 U.S. 666 (1998) 24

Block v. Meese, 793 F.2d 1303 (D.C. Cir.),

cert. denied, 478 U.S. 1021 (1986) 27

Board of County Commissioners v. Umbehr,

518 U.S. 668 (1996) 26

Bob Jones University v. United States,

461 U.S. 574 (1983) 29

Cannon v. University of Chicago,

441 U.S. 677 (1979) 12, 15

Cohen v. Brown University, 991 F.2d 888

(1st Cir. 1993) 13

Columbia Broadcasting System, Inc. v. Democratic

National Comm., 412 U.S. 94 (1973) 27

Cornelius v. NAACP Legal Defense & Educ.

Fund, Inc., 473 U.S. 788 (1985) 2, 23, 24-25

Dallas v. Stanglin, 490 U.S. 19 (1989) 2, 22, 25

Grove City College v. Bell, 465 U.S. 555 (1984) 13

Huber v. Howard County, 849 F. Supp. 407

(D. Md. 1994), aff'd, 56 F.3d 61 (4th Cir.)

cert. denied, 516 U.S. 916 (1995) 14

International Soc. for Krishna Consciousness,

Inc. v. Lee, 505 U.S. 672 (1992) 24

Lehman v. City of Shaker Heights,

418 U.S. 298 (1974) 25

Madsen v. Women's Health Ctr., Inc.,

512 U.S. 753 (1994) 29

McMullen v. Carson, 754 F.2d 936 (11th Cir. 1985) 5

Missouri Highway & Transp. Comm'n v. Cuffley,

112 F.3d 1332 (8th Cir. 1997) 7

Mt. Healthy City Board of Ed. v. Doyle,

429 U.S. 274 (1977) 26

Muir v. Alabama Education Television Commission,

688 F.2d 1033 (5th Cir. 1982), cert. denied,

460 U.S. 1023 (1983) 27

Perry Ed. Ass'n v. Perry Local Educator's Ass'n,

460 U.S. 37 (1983) 24

Perry v. Sindermann, 408 U.S. 593 (1972) 26

Regents of University of Calif. v. Bakke,

438 U.S. 265 (1978) 12

Rosenberger v. Rector & Visitors of the

University of Va., 515 U.S. 819 (1995) 27

Schroeder v. City of Chicago, 927 F.2d 957

(7th Cir. 1991) 13-14

Serra v. General Services Admin., 847 F.2d 1045

(2d Cir. 1988) 27

State of Missouri v. Cuffley, 927 F. Supp. 1248

(E.D. Mo. 1996) 5, 6, 9, 21

State of Texas v. Knights of the Ku Klux Klan,

58 F.3d 1075 (5th Cir. 1995) 8, 25

Steirer v. Bethlehem Area Sch. District, 987 F.2d 989

(3d Cir.), cert. denied, 510 U.S. 824 (1993) 22

Texas v. Knights of the Ku Klux Klan, 853 F. Supp.

958 (E.D. Tex. 1994), aff'd on other grounds,

58 F.3d 1075 (5th Cir. 1995) 16, 17, 19

United States Dept. of Transp. v. Paralyzed

Veterans of Am., 477 U.S. 597 (1986) 2, 13-16, 18

United States v. O'Brien, 391 U.S. 367 (1968) 2, 22

Statutes:

Title VI of the Civil Rights Act of 1964,

as amended, 42 U.S.C. § 2000d et seq. 2, 11

42 U.S.C. § 2000d 4, 12, 17

42 U.S.C. § 2000d-1 14, 15

42 U.S.C. § 2000d-4a(1)(A) 12, 16, 20

Civil Rights Restoration Act of 1987 (CRRA),

Pub. L. No. 100-259, 102 Stat. 28 (1988) 13

Rehabilitation Act of 1973, 29 U.S.C. § 794 13

20 U.S.C. § 1681 13

23 U.S.C. § 116 15

42 U.S.C. § 1983 8

Regulations:

23 C.F.R. Pt. 200 14

23 C.F.R. § 635.505(a)(5) 15

49 C.F.R. Pt. 21 2, 14

49 C.F.R. § 21.5(b)(1)(vi) 15, 17, 18, 20

Legislative Materials:

H.R. Misc. Doc. No. 124, 88th Cong., 1st Sess. (1963) 12

S. Rep. No. 100-64, 100th Cong., 2d Sess. (1987) 13, 16

State Materials:

Missouri Exec. Order 94-02, Art. VII 4, 8, 28

7 CSR 10-14.030(1) (1995) 3

7 CSR 10-14.030(2)(B) (1995) 4, 28

7 CSR 10-14.030(2)(C) (1995) 4, 28

Miscellaneous:

Merriam-Webster Collegiate Dictionary 847

(10th ed. 1997) 14

T. Emerson, The System of Freedom of Expression 700 (1970) 27

INTEREST OF THE UNITED STATES

This case involves the State of Missouri's "Adopt-A-Highway" program. The United States Department of Transportation (DOT), through the Federal Highway Administration (FHWA), grants a significant amount of federal funding to the Missouri Highway and Transportation Commission for a wide range of highway construction and maintenance projects. The United States has a strong interest in how state "Adopt-A-Highway" programs operate on interstate highways, and in how those programs are characterized for First Amendment purposes. In addition, Missouri's brief raises important questions concerning the application of the First Amendment and the applicability of a federal statute, Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000d (Title VI). The Department of Transportation has issued regulations and other directives implementing Title VI, and has a strong interest in the proper interpretation of that statute.

STATEMENT OF THE ISSUES

1. Whether Missouri would violate Title VI if it grants the Klan's application to participate in the Adopt-A-Highway program.

42 U.S.C. § 2000d; 49 C.F.R. Pt. 21; United States Dep't. of Transp. v. Paralyzed Veterans of Am., 477 U.S. 597 (1986).

2. Whether the district court erred in concluding that Missouri's Adopt-A-Highway program regulates expressive activity, and in applying a "forum" analysis applicable to speech restrictions.

Dallas v. Stanglin, 490 U.S. 19 (1989); Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788 (1985); United States v. O'Brien, 391 U.S. 367 (1968).

STATEMENT OF THE FACTS

A. The Missouri Adopt-A-Highway Program.

Like many states, Missouri operates an "Adopt-A-Highway" litter abatement program. The program is administered by the Missouri Highway and Transportation Commission (the Commission). Through the program, groups of citizens volunteer to pick up litter, plant flowers, or mow the grass on highway roadsides. App. 452-53.(1) In recognition of their service, Missouri posts road signs at both ends of the adopted portion of the highway, identifying the organization that has adopted that portion. App. 453. Missouri does not include statements, logos, or advertising on its signs. Ibid.

At the time of the initial application in this case, the Missouri program was open to any person, organization, club or governmental agency, including religious and political organizations. App. 452. However, Missouri subsequently issued regulations governing its Adopt-A-Highway program. These regulations limit participation to "civic and nonprofit organizations, commercial and private enterprises and individuals." 7 CSR 10-14.030(1) (1995). In addition, the regulations state that: "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." Id. § 10-14.030(2)(B). Finally, the regulations provide that "[a]pplicants with a history of unlawfully violent or criminal behavior will be prohibited from participation in the program." Id. § 10-14.030(2)(C).

The activities of state agencies in Missouri are further constrained by a State executive order issued January 14, 1994. The order states, in pertinent part: "No State facility shall be used to promote any discriminatory practice, nor shall any department become a party to any agreement which permits discriminatory practice prohibited by this order, state, or federal law." Exec. Order 94-03, Art. VII.

Missouri receives a substantial amount of federal aid for the construction and maintenance of highways. As a result, Missouri is subject to a number of federal nondiscrimination statutes, including Title VI, 42 U.S.C. § 2000d, which provides that "[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 financial assistance."

B. The Initial Application And The Decision In Cuffley I.

Plaintiff Michael Cuffley, at the time of the application at issue here, was the highest ranking officer in the "Missouri Realm" of the Knights of the Ku Klux Klan ("Klan"), which is part of a larger organization with chapters in each of the 50 states. App. 54, 72, 78, 204. The national organization has a long history of violence and intimidation against African-Americans and others. State of Missouri v. Cuffley, 927 F. Supp. 1248, 1253 (E.D. Mo. 1996) (Cuffley I), vacated, 92 F.3d 1332 (8th Cir. 1997); see McMullen v. Carson, 754 F.2d 936, 938 (11th Cir. 1985). Membership in the Klan, including the Missouri chapter, is limited to "Aryans." App. 73, 74. Prospective members must complete an application form declaring that they are of "non-Jewish, non-Negro, non-Mexican and non-Asian descent." App. 73. In addition, membership will be denied to anyone who is married to someone who is Jewish, Asian, Native American or African-American, or who adopts a child who is non-white. App. 73, 80-81.

On May 31, 1994, Cuffley, on behalf of the Missouri Klan, filed an application with the St. Louis office of the Commission to participate in the Adopt-A-Highway program. In the application, Cuffley requested a one-half mile stretch of Interstate 55 within the City of St. Louis. App. 12, 54. Cuffley acknowledged that, if the Klan were to adopt this or any segment of a highway in Missouri, he would select the participants in litter abatement activities from the Klan's members. App. 216.

The Commission did not take action on the application. Instead, the Commission brought an action against Mr. Cuffley and the Klan, seeking a declaratory judgment that denying the Klan's application to participate in the Adopt-A-Highway program would not violate the Constitution.

On cross-motions, the district court granted summary judgment for the Klan, holding that denying the Klan's application to participate in the Adopt-A-Highway program would infringe upon the Klan's freedom of speech. Cuffley I, 927 F. Supp. at 1253. The court held that participation in the Adopt-A-Highway program is "speech" protected by the First Amendment because the participants in the program intend to convey the message "that they are environmentally-conscious and altruistic contributors to their community." Id. at 1254-55. The district court next held that the Adopt-A-Highway program created "a limited or designated public forum," id. at 1257, and that Missouri unlawfully excluded the Klan on the basis of its viewpoint. Id. at 1259-64.

On appeal, this Court vacated the district court's decision and remanded with instructions to dismiss the action for lack of jurisdiction. Missouri Highway & Transp. Comm'n v. Cuffley, 112 F.3d 1332, 1338 (8th Cir. 1997). The Court first held that an action by a state seeking a declaratory judgment that its regulation is constitutional does not fall within the federal question jurisdiction of the courts. Id. at 1334-36. This Court also held that the dispute is not ripe for review, since Missouri had taken no action on the application and "we cannot determine what reasons the State actually will choose to support its denial * * *." Id. at 1337-38.

C. Missouri's Administrative Decision And The Current Litigation.

After the court of appeals ordered the case dismissed, the Commission issued a decision denying Cuffley's application. The Commission stated that the 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," and also that the Klan "has a history of unlawfully violent and criminal behavior." App. 172. The Commission also found that Title VI of the Civil Rights Act "prohibits the 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 law." Ibid. The Commission also relied upon Missouri Executive Order No. 94-03, which "prohibits state agencies from allowing discriminatory practices on state facilities and prohibits contracting with an organization that discriminates," rendering the Klan ineligible for the program. Ibid. Finally, the Commission explained that it had placed a moratorium on the adoption of highways within the City of St. Louis. Ibid.

Cuffley and the Klan then brought the instant action under 42 U.S.C. § 1983, alleging that Missouri's denial of its application denied it equal protection and due process, and constituted viewpoint discrimination in violation of the First Amendment. On cross motions, the district court granted summary judgment in part for the Klan. The court rejected Missouri's contention that the Klan is collaterally estopped from asserting its right to participate in the program by the Fifth Circuit's decision in State of Texas v. Knights of the Ku Klux Klan, 58 F.3d 1075 (5th Cir. 1995), a case in which the Fifth Circuit upheld a decision by the State of Texas denying an application by the Texas chapter of the Klan to adopt a highway running past a recently-desegregated public housing complex in Vidor, Texas. App. 774 n.2.

Next, the court held that participation in the Adopt-A-Highway program is "speech" protected by the First Amendment, rejecting Missouri's contention that the only "speech" involved is Missouri's own speech "[f]or the same reasons stated in Cuffley I." App. 774. However, the court disagreed with the first district court's vacated holding in Cuffley I that the Adopt-A-Highway program established the highway as a public forum. Instead, the district court held that, since the program allows "very limited expressive activity" to accompany participation, "the program does constitute a forum, but a nonpublic one." App. 776.

The district court then held that Missouri's rationale for denying the Klan's participation failed the test for nonpublic fora, since the restrictions imposed by Missouri were not viewpoint neutral. First, the district court rejected Missouri's attempt to rely upon its regulation requiring all participants to adhere to federal and state antidiscrimination laws. The court concluded that Missouri's reliance upon its nondiscrimination policy "was actually an effort to suppress the Klan's First Amendment right to espouse unpopular and indeed morally and intellectually repugnant ideas." App. 778.

In addition, the district court rejected Missouri's attempt to rely upon Title VI, reasoning that because the Klan itself does not control access to the Adopt-A-Highway program, the statute does not prevent Missouri from allowing the Klan to participate. The court concluded: "The MHTC has identified no program or activity to which the Klan controls access. The Klan itself is certainly not a program or activity as defined in the statute. Therefore, the MHTC has not identified any violation of Title VI by the Klan which would render the Klan ineligible to participate in the AAH program under the MHTC's own guidelines." App. 777.

The district court also rejected Missouri's attempt to rely upon its regulation denying participation to any applicant with a history of unlawfully violent or criminal behavior, holding that the regulation is not reasonable. Ibid. The court stated that it "has no clear idea what that regulation means nor how it could ever be interpreted in such a way as to limit the discretion of whatever government official is charged with applying it." Ibid.

As a result of these holdings, the district court enjoined Missouri from denying the Klan's application on the basis of its regulations. However, the court did not grant the Klan's motion for summary judgment entirely. The district court held that the moratorium on interstate highway adoptions within the City of St. Louis was reasonable and viewpoint neutral, and therefore that Missouri properly denied the Klan participation in the program with respect to its particular request for a stretch of interstate highway within the city limits. App. 781.

ARGUMENT

The United States files this brief as amicus curiae to address two points. First, if Missouri grants the Klan's application to participate in the program, it will violate Title VI's prohibition on discrimination in federally funded programs. Second, the "forum" analysis traditionally used to determine whether a restriction on speech violates the First Amendment is inapplicable here, since the Adopt-A-Highway program is not a regulation governing the speech of its participants.

I. TITLE VI OF THE CIVIL RIGHTS ACT
PROHIBITS MISSOURI FROM ALLOWING
THE KLAN TO PARTICIPATE IN THE
ADOPT-A-HIGHWAY PROGRAM.

The district court erred in finding that the Klan's participation in Missouri's Adopt-A-Highway program did not violate Title VI, 42 U.S.C. 2000d et seq. The district court erred because it focused on whether the Klan violated Title VI. The proper focus, rather, is whether Missouri, as a recipient of federal financial assistance, would violate Title VI if it allowed the Klan to volunteer in Missouri's Adopt-A-Highway program.

A. The Statutory And Regulatory Framework Of Title VI

Title VI prohibits discrimination on the basis of race, color, or national origin in programs or activities receiving federal financial assistance. Specifically, the Act provides: "[n]o person * * * shall, on the basis of race, color, or national origin, be excluded from participation in, denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance." 42 U.S.C. § 2000d. The purpose of Title VI is to ensure that public monies do not support or subsidize discriminatory practices. See Cannon v. University of Chicago, 441 U.S. 677, 704 & n.36 (1979) ("Title IX, like its model Title VI, sought to * * * avoid the use of federal resources to support discriminatory practices"); Regents of Univ. of Calif. v. Bakke, 438 U.S. 265, 284-86 (1978) (Powell, J.); H.R. Misc. Doc. No. 124, 88th Cong., 1st Sess. 3, 12 (1963) ("Simple justice requires that public funds * * * not be spent in any fashion which encourages, entrenches, subsidizes, or results in racial discrimination").

A "program or activity" encompasses "all of the operations of a department, agency, * * * or other instrumentality of a State or of a local government." 42 U.S.C. § 2000d-4a(1)(A). As Congress explained, "if federal health assistance is extended to a part of a state health department, the entire health department would be covered in all of its operations." S. Rep. No. 100-64, 100th Cong., 1st Sess. 16 (1987) (emphasis supplied). Thus, Title VI's prohibition on discrimination applies to any operation or function of a state agency that receives federal assistance, whether or not the federal monies are used for each operation.(2) See Cohen v. Brown Univ., 991 F.2d 888, 894 (1st Cir. 1993) (Title IX has "institution-wide application"); see also Schroeder v. City of Chicago, 927 F.2d 957, 962 (7th Cir. 1991) ("program or activity" under Section 504 encompasses entire department or agency, not entire state or local government); Huber v. Howard County, 849 F. Supp. 407, 415 (D. Md. 1994) (entire county department is subject to Section 504 even though only one office within the department received, and one employee's salary was paid in part by, federal funds), aff'd, 56 F.3d 61 (4th Cir.) (table), cert. denied, 516 U.S. 916 (1995).

By accepting federal funds, a recipient is required to comply with Title VI's prohibition on racial discrimination. See United States Dep't. of Transp. v. Paralyzed Veterans of Am., 477 U.S. 597, 605 (1986). By the statute's terms, a recipient may not discriminate or exclude an individual from "participating in" a program or activity based on the individual's race, color, or national origin. 42 U.S.C. § 2000d. To "participate" means "to take part [in]." Merriam-Webster Collegiate Dictionary 847 (10th ed. 1997).

The DOT, of which the FHWA is a part, has promulgated regulations to effectuate and enforce Title VI. See 42 U.S.C. § 2000d-1; 49 C.F.R. Pt. 21 (DOT regulations); 23 C.F.R. Pt. 200 (FHWA regulations incorporate DOT provisions). The FHWA also issued policy guidance that sets forth coverage of programs and activities under Title VI. App. 66-68. The regulations state that a recipient may not, "through contractual or other arrangement," engage in discriminatory conduct, including the denial of an "opportunity to participate in a program." 49 C.F.R. § 21.5(b)(1)(vi). Thus, a recipient may not allow a third party to discriminate or otherwise deny individuals participation in the operation of its programs on bases prohibited by Title VI.(3)

B. Missouri Would Violate Title VI If It Granted
The Klan's Application To Participate In The
Adopt-A-Highway Program Because The Klan's
Membership Practices Deny Non-Whites The
Opportunity To Participate In The Program

The Missouri Highway and Transportation Commission receives federal funds from FHWA, App. 64-65, and, therefore, is a recipient of federal financial assistance. See Paralyzed Veterans, 477 U.S. at 606-07. Missouri is responsible for, among other things, maintaining roads constructed with federal funds, including litter control. See 23 U.S.C. § 116; 23 C.F.R. § 635.505(a)(5). Accordingly, Missouri's Adopt-A-Highway program, which is one means by which Missouri controls litter on its roadways, is an "operation" of Missouri, and therefore a "program or activity" subject to Title VI. See 42 U.S.C. § 2000d-4a(1)(A); S. Rep. No. 100-64, at 16; App. 452-53.

Thus, Missouri must ensure, under the terms of Title VI, that individuals are not subjected to discrimination on the basis of race, color, or national origin, and are not "excluded from participation in" its Adopt-A-Highway program. See Paralyzed Veterans, 477 U.S. at 605; Texas v. Knights of the Ku Klux Klan, 853 F. Supp. 958, 960 (E.D. Tex. 1994), aff'd on other grounds, 58 F.3d 1075 (5th Cir. 1995). For example, in Texas, 853 F. Supp. at 960, the district court held that the State would violate Title VI if it allowed the Klan to participate in the State's Adopt-A-Highway program because the Klan discriminated against non-whites.

The district court here stated, and the record amply establishes, that the Klan has discriminatory membership policies and practices. App. 73, 74, 80. Only "Aryans" may be members: individuals who are black, Hispanic, or Asian; who are married to a non-white person; or who have children who are, in whole or in part, of minority extraction may not be a member of the Klan. App. 73, 74, 80. If the Klan were granted a segment of the Missouri highway under the Adopt-A-Highway program, only Klan members would participate in the program. App. 216.

Missouri's acceptance of the Klan in its Adopt-A-Highway program would violate Title VI and DOT's implementing regulations. See 42 U.S.C. § 2000d; 49 C.F.R. § 21.5(b)(1)(vi); App. 73, 74, 216. The Klan's membership restrictions exclude subject individuals on the basis of race, color, and national origin, App. 73, 74, and such discrimination then would carry over to the Adopt-A-Highway program. App. 216. If only Klan members may participate in its designated area of the Adopt-A-Highway, Missouri would be unlawfully sanctioning conduct that bars individuals from participating in a portion of this program. See Texas, 853 F. Supp. at 960; 42 U.S.C. § 2000d. The violation is not premised on the beliefs espoused by the Klan, but on the Klan's practice of excluding non-whites from its membership, and, in turn, Missouri's program. Further, the fact that non-whites would be barred from the Klan's designated area, but not other portions of the Adopt-A-Highway program, does not make the exclusion any less discriminatory. A minority university student who is excluded from the school's history department on the basis of race is discriminated against even though he or she may participate in all of the university's other programs.

Moreover, Missouri's allowance of the Klan's participation in the program would violate the regulatory prohibition on any "arrangement" with a third party that bars individuals from participating in a program on the basis of race. 49 C.F.R. § 21.5(b)(1)(vi). While there is no formal contract, Missouri "maintains tight control" over participants' performance under the program. App. 775. Missouri provides the garbage bags for clean-up, instructs entities on the frequency of litter clean-up, limits the text for signs notifying the public of the identity of program participants, and erects the signs. See ibid.; App. 54, 452-453. Missouri may terminate the arrangement if it does not believe the volunteer is fulfilling its obligations. App. 452.

The mere fact that the Klan may "benefit" from the signs posting its participation in the Adopt-A-Highway program does not render it a beneficiary, and therefore beyond the scope of Title VI and Missouri's potential liability. Cf. Paralyzed Veterans, 477 U.S. at 606-07. In Paralyzed Veterans, 477 U.S. at 606-608, the Supreme Court held that recipients of federal financial assistance are subject to Title VI, but beneficiaries of federally assisted programs are not. To make this distinction, the Court considered the program's purpose and its underlying operations. See id. at 608-09.

The purpose of the Adopt-A-Highway program is to maintain clean roadways and control litter. App. 453. The beneficiaries of litter control are motorists and other users of the highways, not the entity that volunteers to perform the very function of the program. Thus, if the Klan, or any other entity, denied participation in its segment of the Adopt-A-Highway program on the basis of race, color, or national origin, Missouri would violate Title VI and its regulations. Accordingly, Missouri correctly determined that it must deny the Klan's application to participate in the Adopt-A-Highway program to comply with Title VI. See Texas, 853 F. Supp. at 960.

The district court's analysis also is flawed because of its improper focus on whether the Klan, rather than Missouri, violated Title VI. The court stated (App. 777):

The MHTC has identified no program or activity to which the Klan controls access. The Klan itself is certainly not a program or activity as defined in the statute. Therefore, the MHTC has not identified any violation of Title VI by the Klan which would render the Klan ineligible to participate in the [Adopt-A-Highway] program under the MHTC's own guidelines.

This text reflects the district court's misunderstanding of the framework and analysis under Title VI. First, it is true that the Klan is not a "program or activity," but the Klan need not be a "program" in order to find Missouri in violation of Title VI. Second, the Klan, through its membership practices, would control access to participants in its portion of Missouri's Adopt-A-Highway program. Missouri's extension of the Klan's discriminatory practices to the State's "program or activity" would violate Title VI and its regulations. 42 U.S.C. § 2000d-4a(1)(A); 49 C.F.R. § 21.5(b)(1)(vi).

The district court further stated that the Klan might not be the only organization that has restrictive membership practices and nonetheless may participate in the Adopt-A-Highway program, and that such membership restrictions do not violate federal law. See App. 777. The issue here is whether membership practices are racially exclusionary, not whether they independently violate federal law. As discussed, a recipient that implements a program through an entity that restricts participation in the recipient's program on the basis of race violates Title VI. Accordingly, this Court should reverse that portion of the district court's opinion that holds participation by the Klan in Missouri's Adopt-A-Highway program does not violate Title VI.

II. THE DISTRICT COURT ERRED IN APPLYING
A PUBLIC FORUM ANALYSIS SINCE THE
ADOPT-A-HIGHWAY PROGRAM DOES NOT
INVOLVE THE REGULATION OF SPEECH

In discussing the appropriate First Amendment standards governing this case, the district court made two important holdings. First, adopting the district court's previous holding in Cuffley I, the court held that participation in the program constitutes "speech" by the participant. Second, as a result of its first holding, the district court adopted a "public forum" analysis to the Adopt-A-Highway program, holding that the Adopt-A-Highway program "does constitute a forum, but a nonpublic one." App. 776. As a result, the district court applied the traditional test governing the regulation of speech in a nonpublic forum. App. 776-77. These holdings were incorrect.

The district court erred in holding, on the basis of Cuffley I, that participation in the Adopt-A-Highway constitutes "speech" because applicants seek access to the program in order "to express to the highway travelers that they are environmentally conscious and altruistic contributors to the community." See Cuffley I, 927 F. Supp. at 1257. The Adopt-A-Highway program does not involve an attempt to regulate or restrict speech. Rather, the program seeks volunteers for the purpose of removing litter from the highways and performing other maintenance tasks. Those who seek to participate, including the Klan, do not seek permits to speak, demonstrate or march along the highway. Nor do they seek to post signs on the highway advocating a message.

The mere fact that the Klan might intend to express an idea through its litter removal activities does not make the conduct expressive. United States v. O'Brien, 391 U.S. 367, 376 (1968). To elevate a general "message" of good citizenship to the level of First Amendment speech is to transform every volunteer and civic activity into constitutionally protected speech. Any activity, such as mowing one's lawn or deciding to perform military service, may plausibly be described as conveying a message of good citizenship. But the Supreme Court has emphatically rejected a broad reading of the First Amendment that would convert every regulation of conduct into regulation of speech:

It is possible to find some kernel of expression in almost every activity a person undertakes -- for example, walking down the street or meeting one's friends at a shopping mall -- but such a kernel is not sufficient to bring the activity within the protection of the First Amendment.

Dallas v. Stanglin, 490 U.S. 19, 25 (1989); see also Steirer v. Bethlehem Area Sch. Dist., 987 F.2d 989, 994-97 (3d Cir.) (community service by high school students is not expressive conduct), cert. denied, 510 U.S. 824 (1993).

Nor do the highway signs posted by Missouri constitute speech by the Adopt-A-Highway participants. On these signs, the State simply acknowledges the service of the participating group in the same way that it might list benefactors of any state-sponsored activity. What limited speech there is, is speech of the State, not of the program participants, who have no control over the sign's content or format. The sign is a mere incident to a program whose purpose is not the presentation of expressive activity but litter removal.

Because the Adopt-A-Highway program does not regulate expressive activity, the "public forum" analysis does not apply.(4) The "forum" analysis is dedicated toward determining under what circumstances speech may be restricted. Indeed, the relevant forum itself is defined by the "access sought by the speaker." Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 801 (1985) (emphasis supplied). Thus, the primary focus of the analysis is whether the government property or program has historically been "devoted to assembly and debate" (a traditional public forum) or has been "opened for expressive activity by part or all of the public" (a designated public forum). See International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992); Perry Ed. Ass'n v. Perry Local Educator's Ass'n, 460 U.S. 37, 45 (1983). Where the property or program is not a traditional or designated public forum it "is either a nonpublic forum or not a forum at all." Arkansas Ed. Television Comm'n v. Forbes, 523 U.S. 666, 678 (1998).

Even in the case of a nonpublic forum, however, the focus is on the restriction of expressive activity. That is, "the exclusion of a speaker from a nonpublic forum must not be based on the speaker's viewpoint and must otherwise be reasonable in light of the purpose of the property." Forbes, 523 U.S. at 682 (emphasis supplied). Thus, cases adopting the nonpublic forum analysis have involved restrictions on expressive activity. See, e.g., Cornelius, 473 U.S. at 802 (access to Combined Federal Campaign to solicit charitable contributions); Perry, 460 U.S. at 4748 (access to school's internal mail system to communicate with teachers). In Cornelius, for instance, the Supreme Court found it necessary to determine whether the activity involved (solicitation of charitable contributions) was expressive activity before determining the nature of the forum involved. If the activity is not speech, the Court held, "we need go no further." 473 U.S. at 797.(5)

Because this case does not involve a program that attempts to regulate or restrict protected speech, the district court erred in applying a public forum analysis. This is not to say, of course, that a state is free in these circumstances to deny participation in the Adopt-A-Highway program on the basis of an applicant's disfavored viewpoint. However, an allegation of viewpoint discrimination in this context requires a different analysis. See, e.g. Stanglin, 490 U.S. at 25-26 (suggesting that, since the conduct at issue was not expressive, the state regulation is subject to "rational basis" review); Lehman v. City of Shaker Heights, 418 U.S. 298, 303-04 (1974) (holding that "[n]o First Amendment forum is here to be found," and that government policy regarding advertisements on transit system "must not be arbitrary, capricious, or invidious.").

This case is better understood as one alleging "unconstitutional conditions," a doctrine that precludes the government from denying access to a program or benefit as a result of the exercise of the applicant's constitutional rights. See Perry v. Sindermann, 408 U.S. 593, 597 (1972). Such an action, however, does not put the burden on the State to show that its regulation is reasonable and viewpoint neutral -- a burden imposed by the district court here. Rather, to show a violation of "unconstitutional conditions," the plaintiff must prove that the conduct was constitutionally protected and that the exercise of constitutional rights was the substantial or sole motivating factor in the decision to deny participation. Board of County Commissioners v. Umbehr, 518 U.S. 668, 675 (1996); Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 287 (1977).

Moreover, in applying this standard (or, for that matter, in applying the standard governing a nonpublic forum), the court must take into account the fact that the Adopt-A-Highway program involves an element of government speech -- a sign maintained by the State acknowledging the service of the participant in a state-sponsored litter abatement program. The State has greater leeway in regulating access to a program involving its own speech. "'The purpose of the First Amendment is to protect private expression and nothing in the guarantee precludes the government from controlling its own expression or that of its agents.'" Columbia Broadcasting Sys., Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 139 n.7 (1973) (Stewart, J., concurring) (quoting T. Emerson, The System of Freedom of Expression 700 (1970)); see also Block v. Meese, 793 F.2d 1303, 1313 (D.C. Cir.) (Scalia, J.) (rejecting the "strange conclusion" that, under the First Amendment, "it is permissible for the government to prohibit racial discrimination, but not to criticize racial bias"), cert. denied, 478 U.S. 1021 (1986); Muir v. Alabama Educ. Television Comm'n, 688 F.2d 1033, 1044 (5th Cir. 1982) (en banc) ("the First Amendment does not preclude the government from exercising editorial control over its own medium of expression") (footnote omitted), cert. denied, 460 U.S. 1023 (1983). As one court has noted, "the Government may advance or restrict its own speech in a manner that would clearly be forbidden were it regulating the speech of a private citizen." Serra v. General Services Admin., 847 F.2d 1045, 1048 (2d Cir. 1988); see also Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 833 (1995) ("we have permitted the government to regulate the content of what is or is not expressed when it is the speaker").

By holding that mere participation in the Adopt-A-Highway program constitutes expressive conduct protected by the First Amendment, the district court erroneously applied a too-stringent standard that deprives Missouri of any right to control the expression of its own speech. Moreover, the district court erroneously treated the regulations upon which Missouri relied as regulations governing speech, placing the burden of proof on Missouri rather than on the Klan.

Missouri has issued regulations implementing two important policies relevant here. First, Missouri promulgated a regulation expressing its policy against allowing participation by individuals or groups that practice racial discrimination. See 7 CSR 10-14.030(2)(B); see also Exec. Order 94-03, Art. VII. Second, Missouri issued a regulation stating that "[a]pplicants with a history of unlawfully violent or criminal behavior will be prohibited from participation in the program." 7 CSR § 10-14.030(2)(C).

The United States has no first-hand knowledge regarding how Missouri has applied these regulations. We note, however, that those regulations do not, on their face, impose disqualifications based on an applicant's constitutionally protected speech or ideology, let alone on the basis of a disfavored viewpoint. Rather, those regulations impose disqualifications that are based upon the applicant's conduct. For instance, a state certainly may establish a policy against racial discrimination, and may deny participation in government programs to individuals or groups who practice discrimination on the basis of race without running afoul of the First Amendment. See, e.g., Bob Jones Univ. v. United States, 461 U.S. 574, 585-96 (1983).

Moreover, if Missouri's regulation denying participation to applicants with "a history of unlawful violence or criminal conduct" is reasonably interpreted as prohibiting applicants who have been convicted of crimes from adopting highways, it creates no First Amendment problem. Governmental restrictions based on the actor's conduct do not violate the First Amendment, even where the actor seeks to articulate a political message. Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 763 (1994) (injunction against anti-abortion protestors was content and viewpoint neutral because it was based on prior unlawful conduct).

CONCLUSION

For the foregoing reasons, the judgment of the district court should be reversed.

Respectfully submitted,

BILL LANN LEE                                        DAVID O. OGDEN
   Acting Assistant Attorney General                Acting Assistant Attorney General

MARK L. GROSS                                      EDWARD L. DOWD
JENNIFER LEVIN                                        United States Attorney
   Attorneys, Appellate Section
   Civil Rights Division                                   MARK B. STERN
                                                                      (202)514-5089
Of Counsel:                                                  MATTHEW M. COLLETTE
NANCY E. MCFADDEN                             (202) 514-4214
   General Counsel                                           Attorneys, Appellate Staff
   Department of Transportation                       Civil Division, Room 9552
KAREN E. SKELTON                                  Department of Justice
   Chief Counsel                                              Washington, D.C. 20530-0001
   Federal Highway Administration

AUGUST 1999

CERTIFICATE OF SERVICE

I hereby certify that on August 19, 1999, I served the foregoing Brief for the United States as Amicus Curiae Supporting Appellants upon counsel of record by causing two copies to be mailed, postage prepaid, to:

Curtis F. Thompson
District Counsel
Missouri Highway & Transportation
  Commission
P.O. Box 270
Jefferson City, MO 65102

Robert Herman
Schwartz, Herman & Davidson
1034 S. Brentwood
Suite 1800
St. Louis, MO 63117

In addition, I certify that pursuant to Local Rule 28A(d), I caused to be sent to the Court and each counsel one copy of the brief on a 3 ½ inch computer diskette that was scanned for viruses and found to be virus-free.

MATTHEW M. COLLETTE
Counsel for the United States

BRIEF FORMAT CERTIFICATION PURSUANT
TO FED. R. APP. P. 32(a)(7)

I hereby certify that the Brief for the United States as Amicus Curiae Supporting Appellants complies with the Type-Volume requirements of Fed. R. App. P. 32(a)(7)(B) in the following manner:

The Brief was prepared using Corel Wordperfect 7.0. It is proportionately spaced in 14-point type, and contains 6498 words (including the cover page and certificate of service).

MATTHEW M. COLLETTE
Counsel for the United States

1. "App." refers to the Appendix filed concurrently with the Brief for Appellant.

2. The legislative history provides unequivocal support that Title VI's prohibitions extend to all of the acts of a recipient that receives federal assistance. See S. Rep. No. 100-64, at 2. In Grove City College v. Bell, 465 U.S. 555, 571-74 (1984), the Supreme Court held that Title IX of the Education Amendments of 1972, as amended, 20 U.S.C. § 1681, prohibited discrimination only in the specific program that received federal financial assistance. Since the college received federal funds through student financial aid, the Court held that the college was barred only from discriminating in its financial aid program, but could discriminate in all of its other operations without violating Title IX. Id. at 574. Congress enacted the Civil Rights Restoration Act of 1987 (CRRA), Pub. L. No. 100-259, 102 Stat. 28 (1988), with an unequivocal objective: to overturn Grove City College's interpretation of "program" and restore the expansive sweep, "effectiveness and vitality" of Titles IX, VI, and similar civil rights statutes. S. Rep. No. 100-64, at 2. Congress reviewed the history of Title VI and related civil rights statutes, the pre-Grove City judicial interpretations that broadly interpreted coverage, and the post-Grove City rulings that significantly narrowed the statutes' scope to conclude that the CRRA was essential to fulfill the purposes of Title VI. See S. Rep. No. 100-64, at 5-20.

Title VI is the model for Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and Title IX, and case law interpreting one statute is relied upon in interpretations of the other statutes. United States Dep't. of Transp. v. Paralyzed Veterans of Am., 477 U.S. 597, 600 n.4 (1986).

3. If a recipient is found to violate Title VI or its regulations, the funding agency may terminate funding through administrative proceedings, or seek compliance "by other means authorized by law," which include suits instituted by the United States or a private right of action. 42 U.S.C. § 2000d-1; see Cannon, 441 U.S. at 717.

4. In our previous amicus brief before this Court in Cuffley I, we addressed the issues presented in "public forum" terms in the course of arguing that the district court erred in holding that the Adopt-A-Highway program constituted a public forum. We also pointed out, however, that any "speech" in the program is that of the State and not the participants. Upon further study of the issues, we believe that the fact that the program does not involve protected expressive activity renders the "public forum" analysis inappropriate.

5. In State of Texas, the Fifth Circuit held that an Adopt-A-Highway program established by the State of Texas did not constitute a public forum. See 58 F.3d at 1078. That case should not be read as endorsing the public forum analysis, however, since the court expressly noted that it did not need to decide whether participation in the Adopt-A-Highway program constitutes protected speech. See id. at 1078 n.1. In fact, the Texas court noted that "[t]he extent to which the government may limit access to a forum for purposes of engaging in speech depends on the nature of the relevant forum." Id. at 1078 (emphasis supplied).