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State & Local News Vol. 23, No. 4, Summer 2000 RECENT DEVELOPMENTS
by Peter A. Buchsbaum This month's news is the usual run of interesting scrapes for states and local governments. Religious Use of School Facilities-Vagueness-Discrimination. The Fifth Circuit has upheld a Louisiana public school district policy barring nonstudents from using school buildings for religious services or instruction. The district also barred use of the building for partisan political activity and nonprofit fund-raising. When the Louisiana Christian Coalition sought to have a prayer meeting at the school, its request was rejected under the building use policy. Overruling the trial court, the Fifth Circuit held the ban on religious services and religious instruction was not vague. Further, the general ban on other political, for-profit fund-raising and other activities made the school a nonpublic forum. Under that theory, the school district was entitled to exclude religious services that were not consistent with the school's purpose. Campbell v. St. Tammany's School Board, 68 U.S.L.W. 1556 (5th Cir. Mar. 9, 2000). Federal Wiretap Statute-Civil Rights Liability. When a police chief surreptitiously records employees' private telephone calls, can his municipal employer be held liable? The answer appears to be no, at least where such recording was not based on an official policy or widespread practice. The Seventh Circuit has held that the Federal Wiretap Act, which the chief had violated by his surreptitious recordings, did not include a municipality as a person who could be civilly sued. Further, § 1983 liability was unavailable because the chief's act was his alone, not that of the municipality. Abbott v. Winthrop Harbor, Ill., 68 U.S.L.W. 1555 (7th Cir. Mar. 6, 2000). Schools-Graduation-Establishment Clause. Duval County, Florida, discontinued formal prayers by clergy at its high school graduations after the Supreme Court decided that such prayers were illegal in Lee v. Weisman, 505 U.S. 577 (1992). Shortly thereafter, the school board began to allow students to select by vote a speaker who would then be free to choose a religious or a nonreligious theme at his or her discretion without school input. In most high schools, the two-minute or so messages ended up being religious. The en banc Eleventh Circuit upheld the policy. It found that allowing an autonomous elected speaker to deliver a message that could be either secular or religious involved no advancement of religion. Further, the absence of school board review of the short talks avoided entanglement by the state with religion. In dissent, two judges declared that the policy maximized the chance that prayer would continue to play a prominent role in Duval County graduations and the coercion of religion in the public ceremony barred in Lee was still present. Adler v. Duval County School Board, 68 U.S.L.W. 1571 (11th Cir. Mar. 15, 2000), en banc 10-2, overruling a panel decision, 67 U.S.L.W. 1717 (11th Cir. 1999). States Sovereign Immunity-State Court. In an interesting twist on the Eleventh Amendment, an Illinois employee who worked in the New Jersey office of the Illinois Department of Revenue sued, after being fired, in New Jersey state court under the New Jersey Law Against Discrimination. Illinois defended on the ground that New Jersey state courts could not hear a suit against the State of Illinois. The Supreme Court of New Jersey rejected this defense. It found that the Eleventh Amendment is not applicable to the states. Therefore, although an Illinois resident could not have sued Illinois in the New Jersey federal courts, he could bring an action in the state courts. However, the New Jersey court limited the employee's remedy to damages, finding that mandatory reinstatement authorized by the New Jersey anti-discrimination law might infringe upon Illinois sovereignty. This is an interesting twist-in federal court the Eleventh Amendment has been applied to bar damage actions but not, to this point, to bar requests for injunctive relief. McDonnell v. Illinois, 68 U.S.L.W. 1573 (N.J. Sup. Ct. Mar. 2, 2000). Free Speech-Roads-Ku Klux Klan. We are all familiar with the adopt-a-highway program in which individuals or volunteers agree to keep a portion of the highway free of litter. A sign is usually posted announcing the identity of the volunteer. In Missouri, the Ku Klux Klan volunteered to participate in that state's program and receive the benefit of the signs crediting it for anti-litter activities. When Missouri rejected the Klan's effort to participate, the Klan sued. In its decision, the Eighth Circuit found in favor of the Klan, holding that objection to its application amounted to unconstitutional content-based discrimination. According to the Court, the First Amendment "protects everyone, even those with viewpoints as thoroughly obnoxious as those of the Klan." The court also rejected claims that the Klan could be barred because it violated the discrimination laws refusing membership to nonwhite Anglo Saxons-the Klan had a right of freedom to associate with whites only, which it could not be forced to waive in order to participate in the program. Further, there was no violation of Title VI of the 1964 Civil Rights Act, barring discrimination by agencies that receive federal funds, since the Klan certainly did not receive federal assistance. Cuffley v. Mickes 68 U.S.L.W. 1604 (8th Cir. Mar. 31, 2000). Finally, from my home area the following: Substantive Due Process-Vested Land-Use Rights-Individual Liability. Weighing in on the much contested issue of substantive due process liability in land-use cases, the Third Circuit recently squarely upheld a developer's claim that it was entitled to a trial in court in its damage action resulting from denial of a land-use approval. A developer of low- and moderate-income housing had lost its tax credit when defendant township refused to grant it approval. The court found that there was no basis under Pennsylvania law for denying the approval. Accordingly, Woodwind Estates had vested rights in the approval and could sue the township for an irrational and arbitrary deprivation of those rights. Further, and perhaps more significantly, the court declined to dismiss the claim against individual defendants. It found that township supervisors could not reasonably have believed that their conduct was proper since the developer's plan clearly satisfied all local objective criteria. It was also no defense that the supervisors had merely followed the recommendation of the Planning Commission to deny. The court accordingly remanded the case for a full trial. Woodwind Estates Ltd. v. Gretkowski, 2000 U.S. App. LEXIS 2889 (3d Cir. Feb. 28, 2000). Peter A. Buchsbaum is chair of the Section's Land Use Committee and practices law with Greenbaum, Rowe, Smith, Ravins, Davis & Himmel in Woodbridge, New Jersey.
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