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GREGOIRE v. CENTENNIAL SCH. DIST.

November 30, 1988

HARRY GREGOIRE, DAVID URBANY, SCOTT IRWIN, HERMAN DIETSCH, RICH MILLER and CAMPUS CRUSADE FOR CHRIST, INC.
v.
CENTENNIAL SCHOOL DISTRICT, and Ronald Y. White, in his official capacity as Supervisor of Secondary Education for the Centennial School District



The opinion of the court was delivered by: BECHTLE

 LOUIS C. BECHTLE, UNITED STATES DISTRICT JUDGE

 Presently before the court is plaintiffs' "Motion For Summary Judgment: Permanent Injunction And Declaratory Relief" whereby plaintiffs seek: (1) a declaration from this court that defendant Centennial School District's ("Centennial") policy on facility use, as amended on March 8, 1988 (hereinafter "the new policy"), violates the United States Constitution's Free Speech Clause of the First Amendment and Equal Protection Clause of the Fourteenth Amendment; and (2) a ruling that defendants are permanently enjoined as follows: "As long as the defendants allow nonschool groups to use or rent Centennial School District facilities, defendants are enjoined from refusing to allow groups or individuals to use those facilities solely because of the religious content of their activities."

 I. BACKGROUND

 A detailed background of this action appears in the court's October 28, 1987 Memorandum and Order, reported at 674 F. Supp. 172, *fn1" wherein the court granted plaintiffs' Fed.R.Civ.P. 65 motion for a preliminary injunction and made detailed Fed.R.Civ.P. 52(a) findings of fact and conclusions of law which the court incorporates herein by reference.

 The new policy was apparently still in its conceptual and developmental stages at the time of the preliminary injunction hearing in this action. For that reason, the court, in its October 28, 1987 Memorandum and Order, did not consider any of the then "proposed" amendments to the then existing policy, but instead left that issue to a later day, which has now arrived. Gregoire, supra, 674 F. Supp. at 178-79, n. 5. *fn2"

 In accordance with the court's October 28, 1987 Memorandum and Order, plaintiffs rented and used William Tennent High School auditorium on the evening of Saturday, October 31, 1987 (Halloween) to host illusionist/magician Andre Kole's "World of Illusion" performance.

 Plaintiffs now claim that in the future they may desire to use Centennial's school facilities again if they are open for public use outside of school hours. They argue that the new policy is unconstitutional on its face, as a violation of their rights to freedom of speech, equal protection under the law, and free exercise of religion. Plaintiffs seek declaratory relief that the new current policy is unconstitutional and a permanent injunction barring its implementation by Centennial.

 In its October 28, 1987 opinion the court noted that it had decided and granted plaintiffs' motion for a preliminary injunction "without addressing, as the centerpiece, the defendant's written policy ('regulation'), 6.2.B., paragraph 17, since it is what defendant does, rather than what its regulation says, that is ultimately decisive." Id. at 178-79. However, the court went on to address the written regulation since defendants had pointed to it as a basis for their position. The court noted:

 
As the regulation is placed over the constitutional spectrum it takes on a somewhat chameleonic character giving it different constitutional hues. The manner that defendant invokes this written regulation will determine the constitutional hues it will project -- sometimes constitutionally acceptable; sometimes not. The portion of the regulation which prohibits use of school facilities for any religious "services" has potential constitutional vitality at another time, and in another case, since the forum defendant has created is only an open forum as to speech and association and not services, rituals, ceremonies or rites. Furthermore, the performance of religious services by definition does not have a secular purpose and would thus violate the Establishment Clause. On the other hand, the portion of the regulation which prohibits use of school facilities for religious "instruction" is not valid in the context of this case since it violates plaintiffs' free speech rights. The portion of the regulation which prohibits religious "activities" has no constitutional meaning when read in a vacuum without any specific application to precise facts. To the extent that the regulation would be exclusively relied upon to bar religious speech, it is unconstitutional.

 Id. at 179. (Emphasis in original).

 On March 8, 1988, Centennial changed its Facilities Use policy. That new policy states, in pertinent part:

 
c. In any event, religious services (defined to include the invocation of, worship to, prayer to, or adoration of a diety [sic]) is prohibited.
 
d. The sale or distribution of Bibles, testaments, scriptures or religious literature is prohibited.

 New Policy at p. 6.2.F.

 Defendants oppose plaintiffs' "Motion For Summary Judgment: Permanent Injunction And Declaratory Relief" and argue that the enactment of the new policy moots this case and thus there is no longer a case or controversy. Defendants note that the only remaining part of the court's October 28, 1987 Order which requires persuasion of mootness is paragraph No. 2 of that Order which provides as follows:

 
2. As long as it maintains the speech forum it has created as the court has defined open speech forum in the accompanying Memorandum, defendant is hereby enjoined from refusing to rent public school facilities within Centennial School District to groups or ...

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