Esperanza Peace & Justice Center

esperanza v. City of San Antonio

Plaintiff's First Amended Complaint

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

ESPERANZA PEACE & JUSTICE CENTER, a non-profit corporation;
THE SAN ANTONIO LESBIAN & GAY MEDIA PROJECT, an unincorporated association,
and VAN, an unincorporated association,
Plaintiffs,

v.

CITY OF SAN ANTONIO and
HOWARD PEAK, in his official capacity as MAYOR OF THE CITY OF SAN ANTONIO,
Defendants.

CIVIL ACTION NUMBER SA98CA0696-OG

Plaintiffs' First Amended Complaint

To the Honorable Judge:

Come now, Esperanza Peace and Justice Center, The San Antonio Lesbian & Gay Media Project, and VaN, Plaintiffs herein, and file this First Amended Complaint, praying relief from this Court. In support thereof, Plaintiffs allege and would show as follows:

Nature of Plaintiffs' Claims

1. Plaintiffs challenge, under 42 U.S.C. § 1983, viewpoint-based discrimination in public arts funding, by the Defendants, in violation of the right to free speech under the First Amendment to the United States Constitution, and animus-based decisions in public arts funding, by the Defendants, in violation of the right to equal protection of the laws under the Fourteenth Amendment of the United States Constitution. Plaintiffs also bring a supplemental state law claim under the Texas Open Meetings Act, Texas Government Code, §§ 551.001 et seq.

2. In the First Amended Complaint, Plaintiffs Esperanza Center and the Media Project extend their claims of viewpoint-based discrimination, animus-based discrimination, and violation of the Texas Open Meeting Act to the Defendants' denial of arts funding to them for the Fiscal Year 98-99 and add an additional claim, under 42 U.S.C. § 1983, of unconstitutional retaliation and unconstitutional conditions in violation of the right to petition and the right of free expression under the First Amendment to the United States Constitution.

II.

Jurisdiction and Venue

3. The United States District Court has jurisdiction in this case under 28 U.S.C. §§ 1331, 1367, 2201, 2202. Venue is proper in the United States District Court for the Western District of Texas under 28 U.S.C. §1391 because the acts and omissions at issue in this case occurred within the geographical boundaries of the District.

III.

Parties

The Plaintiffs:

4. The Esperanza Peace and Justice Center ("Esperanza" or "Esperanza Center") is a non-profit cultural arts and education center located in the City of San Antonio and Bexar County, Texas, and incorporated as a non-profit organization under the law of Texas. Esperanza is a "person" entitled to sue under 42 U.S.C. §1983. Esperanza was founded in 1987 and has operated continuously since that time, offering innovative programing in visual arts, music, film, video, and cultural studies to San Antonio's diverse communities and visitors as well as space and assistance to many local organizations and artists. For 1996 and 1997, City evaluators ranked the Esperanza Center Number ONE among comparable arts-funding applicants, recognizing the Esperanza's excellence in administration, artistic content, and audience development. Service upon Esperanza may be achieved by serving attorney Amy H. Kastely, at the office of the Esperanza Center, 922 San Pedro, San Antonio, Texas 78212.

5. The San Antonio Lesbian & Gay Media Project ("Media Project") is an unincorporated association formed, in 1992, for the purpose of promoting fair, accurate, and inclusive media images and portrayals of lesbians, gay men, bisexuals and transgendered persons. The Media Project is a "person" entitled to sue under 42 U.S.C. §1983. Since 1992, the Media Project has presented Out at the Movies, a lesbian and gay film festival, the aim of which is to exhibit contemporary lesbian and gay film and video, to demonstrate the diversity of national and international lesbian and gay cultures (including films and videos from a variety of age, nationality, language, gender, religious, and historical perspectives), to increase discussion of current social issues within lesbian and gay communities, and to promote understanding within public media organizations. The Media Project Coordinator is Dennis Poplin. The 501(3)(c) Fiscal Agent for the Media Project is the Esperanza Center. Service upon the Media Project may be achieved by serving attorney Amy H. Kastely, at the Esperanza Center, 922 San Pedro, San Antonio, Texas 78212.

6. VaN is an unincorporated association formed, in 1994, for the purpose of bringing national and international artists who are visiting or working in other parts of Texas to San Antonio for programs and networking. VaN is a "person" entitled to sue under 42 U.S.C. §1983. VaN provides transportation, housing, and collaborative linking on an extremely flexible, artist-driven basis. The 501(3)(c) Fiscal Agent for VaN is the Esperanza Center. Service upon VaN may be achieved by serving attorney Amy H. Kastely, at the Esperanza Center, 922 San Pedro, San Antonio, Texas 78212.

The Defendants:

7. The City of San Antonio ("City") is a municipality and a "person" capable of acting under color of law. In all of the acts alleged herein, the City and its agents, including its governing body, the San Antonio City Council; the presiding officer of the City Council, Mayor Howard Peak; the ten individual Council Members; the City's Department of Art and Cultural Affairs; the Director of the Department of Art and Cultural Affairs, Eduardo Díaz; the Department of Art and Cultural Affairs Peer Review Panels and their individual members; the Cultural Arts Board and its individual members; and the City Manager, Budget Office, and their staff, acted under color of law, pursuant to a policy or practice of the City.

8. Howard Peak is the Mayor of the City of San Antonio and in his official capacity and because of his official status, he is a person capable of acting under color of law. Defendant Howard Peak is sued in his official capacity only and for injunctive relief only.

IV.

Factual Allegations

The Esperanza Center

The Esperanza Center's Mission and Programs

9. In 1987, the Esperanza Center was founded as a networking, cultural arts, and educational center aimed at supporting numerous social justice organizations and providing cultural arts programming and education. Since 1994, the Esperanza Center has been located at 922 San Pedro, San Antonio, in a building that includes meeting, theater, stage, and gallery space. The vision statement of the Esperanza Peace and Justice Center is: The people of Esperanza dream of a world where everyone has civil rights and economic justice, where the environment is cared for, where cultures are honored and communities are safe. The Esperanza Center advocates for those wounded by domination and inequality - women, people of color, lesbians and gay men, the working class and poor. We believe in creating bridges between people by exchanging ideas and education and empowering each other. We believe it is vital to share our visions of hope . . . we are esperanza.

10. The Strategic Plan of the Esperanza Center includes the following goals:

A. To provide programming which generates multi-issue/multicultural community organizing while providing resources and space where the creation and presentation of the arts reflect the cultures of people in struggle.

B. To construct, develop, and operate a permanent, safe, central, multi-purpose facility for artists, activists and other community members to do their work with a sense of community, history, quality, and hope.

11. The Esperanza has pursued its vision and goals in two principal ways. First, the Esperanza Center presents a wide range of arts and educational programs for San Antonio's diverse communities and visitors. The Esperanza's Number ONE ranked arts programming, PazARTE, includes MujerCanto, featuring women's performance, music, song, and thought; Visiones de Esperanza: Inner City Youth Media Project, which trains inner-city youth to tell their stories in print and film; MujerArtes, a Westside community arts economic empowerment project in which low-income women develop their artistic skills and produce pottery for sale; Platicas, a community forum for writers and speakers to address current issues; the Other America Film Festival, presenting films about communities and issues throughout the Americas; and Exhibiciones Activas, a series of art exhibits featuring art by women, people of color, youth, lesbians and gays, and other disenfranchised voices.

12. Some examples of the variety of Esperanza programming include: Azúcar y Crema, a nine-piece all-women salsa / jazz orchestra; Los Inocentes, a Mexican and Tejas folk music quartet (performing in six South San Antonio schools); the MujerARTES Dia de los Muertes Exhibit, featuring original art created for the Day of the Dead; a screening of the path-breaking film Licensed to Kill and a discussion with its film-maker, Arthur Dong; the MacArthur Latino Conference, in which Latino and Latina recipients of the MacArthur Genius Award met for several days in San Antonio and presented a variety of programs and workshops for the public; a screening of a video entitled Are You Deaf Enough, which explores power dynamics within deaf communities; the Human Rights / USA educational campaign, including presentations by writer and activist Loretta Ross; El Hilo de las Adelitas, a conversation among several well-known Latina writers and activists; the AIDS Art Show, featuring artwork expressing the pain and struggles of those affected by the AIDS crisis; the San Antonio premier screening of John Sayles' latest film, Men With Guns, including a discussion with one of the film-makers; and many other artistic and educational events.

13. Second, the Esperanza Center created and has maintained a network of local social justice, community, and cultural arts organizations, to which Esperanza provides space for meetings and events, assistance in organizational matters, and general support for networking and community outreach activities.

Esperanza Funding, Prior to 1997-98

14. Esperanza is funded through public and private grants, individual donations, and earned income. In 1996-97, for example, the Esperanza Center's operating budget was approximately $300,000. Of this, approximately 40% came from individual cash and in-kind donations; approximately 20% came from earned income and special fund-raising events; approximately 13% came from private foundations, including the Rockefeller Foundation, the Ford Foundation Human Rights USA Project, and the James R. Dougherty foundation; approximately 7% came from federal and state arts funding; and approximately 20% came from San Antonio Department of Arts and Cultural Affairs ("DACA") grants.

15. The Esperanza Center has received DACA arts funding grants since FY 1990-91, when it received $5,000 for the PazARTE programming. With excellent programming, verified by rigorous evaluations by DACA review panels and the Cultural Arts Board ("CAB" or the "Board"), Esperanza received a $10,000 grant in FY 1991-92; $15,000 in FY 1992-93; $21,434 in FY 1993-94; $60,372 (for operational support-first year and two projects) in FY 1994-95; $45,372 (for operational support-second year and one project) in FY 1995-96; and $51,391 (for operational support-first year and one project) in FY 1996-97.

The Media Project

16. The most significant project of the Media Project is the annual Out at the Movies film festival. During its seven-year history, Out at the Movies audiences have met with filmmakers, artists, and media critics from Mexico, Cuba, and the United States. The film festival includes film programs from diverse lesbian and gay communities, presented in a central location in an inner city neighborhood, with opportunities to view and discuss contemporary films with knowledgeable guests in the context of contemporary social and cultural issues. For each of the past several years, the festival has included two special programs: Texas I.D., which features new short films and videos by Texas filmmakers and Lesbian and Gay Films and Videos from Mexico, which facilitates exchange of contemporary films, videos, and ideas between artists and audiences on both sides of the border.

17. The Media Project is funded through ticket sales, concessions, program advertising, individual and organizational cash and in-kind donations, and grants. Prior to 1997-98, the Media Project received three one-year DACA project grants: in FY 1994-95, the Media Project received a DACA project grant of $5,000; in FY 1995-96, a project grant of $6,100; and in FY 1996-97, a project grant of $8,955.

VaN

18. Since its creation in 1994, VaN has provided support to facilitate performances, exhibitions, and networking opportunities for San Antonio residents and visitors by or with such outstanding artists as: Elia Arce (Costa Rican performance artist); Leonard Cruz (Filipino San Antonio dancer/choreographer), Marcus Kuilland-Nazario (Puertoriqueño performance artist), Rick Lowe (African-American visual artist), Vicky Meeks (African-American visual artist), Zakes Mofokeng (South African story-teller), Jaime Ortega (Mexican choreographer), Mark Pauline (multidisciplinary artist), Ntozake Shange (African-American writer), Melanie Smith (British visual artist based in Mexico City), Zocalo Mobile Village (interdisciplinary arts group), and many others.

19. VaN is funded through individual cash and in-kind donations and grants. VaN was awarded operational grants from the Texas Commission on the Arts ("TCA") for 1994-95 ($1,014), for 1995-96 ($1,267), and for 1996-97 ($3,463). In 1997, the TCA grant program was restructured so that operational support grants were made through block-grants to various city governments, rather than through direct grants from the TCA. For this reason, VaN applied to DACA in 1997 for a grant of $5,000.

San Antonio Public Arts Funding

Strategic Plan, Guidelines, Criteria, and FY 1996-97 Decisions

20. The San Antonio Department of Art and Cultural Affairs ("DACA") was created by City Ordinance in 1990. Upon information and belief, DACA was created in large part as a response to concerns over excessive political influence in arts funding, which had been, until that time, handled by the Department of Parks and Recreation. Former Mayor Henry Cisneros empaneled a Blue Ribbon Committee to address problems in city arts funding and the Committee's 1988 Report recommended, among other things, creation of an independent, autonomous department with responsibility for public funding of arts and cultural affairs.

21. Among DACA's first tasks was development of a Strategic Plan, which defined four program areas: Grantmaking and Services to the Field, Marketing and Audience Development, Arts in Education, and Public Art (now termed "Design Enhancement Policy"). The Strategic Plan was approved by the San Antonio City Council ("City Council" or "Council"), the governing body of the Defendant City of San Antonio, in July, 1993. The Strategic Plan defines DACA's mission: "As an agency of municipal government, the Department of Arts and Cultural Affairs provides leadership and resources for comprehensive arts and cultural development, enhancing the quality of life through improving the quality of arts in San Antonio."

22. The Strategic Plan defines the goal for DACA's arts funding as "to maintain and develop funding for programs that address the agency's mission, by furthering artistic excellence, and by fostering increased, diverse public participation and awareness of the role the arts play in San Antonio." The Strategic Plan further defines "several important premises and philosophies" that "are embraced as a part of this goal," including "all municipal grant funding for San Antonio will be on a competitive, merit basis through the Department's granting programs;" the Department is committed to a strong, consistent peer panel review process for the consideration of all funding applications;" and "agency grants programs are designed and intended to serve a broadly multicultural constituency, and to encourage growth and strength within arts of diverse cultures." Finally, throughout its discussion of procedure for funding decisions, the Strategic Plan emphasizes the importance of objective criteria that will determine City funding decisions. For organizational development and/or project support, the Strategic Plan adopts the criteria of artistic excellence, administrative capacity, and audience development.

23. Upon information and belief, for each fiscal year since 1994-95, DACA has proposed, and the City Council has approved, Guidelines for the Arts Funding Process. These Guidelines state the criteria and the process for City arts funding decisions pursuant to the mission and goals defined in the Strategic Plan. In February, 1996, DACA proposed, and the City Council approved, Guidelines for the Arts Funding Process for the Fiscal Year 1996-97 (the "DACA Guidelines--FY 1996-97" or "96-97 Guidelines"). The Guidelines include a statement of funding program objectives, which include that "contracts for arts services will support excellence in artistic product and in meeting organizational goals;" "a panel review process will be used to rank Operational and Project Support applicants and to provide a funding recommendation to the Cultural Arts Board;" "funding is designed and intended to serve a broad multi-cultural constituency, and to encourage growth and viability within arts of diverse cultures;" "funding should affirmatively encourage and facilitate the participation of culturally diverse populations, geographically underserved neighborhoods and economically disadvantaged populations and the disabled;" "funding is intended to reach and support organizations of all sizes and artists working within all arts disciplines, and support the development of art that is uniquely San Antonio." In addition, the Guidelines specify three areas of review criteria: Artistic Excellence, Audience Development, and Administrative Capacity.

24. The 96-97 Guidelines distinguish between operational support grants (which were to involve "2 year commitments") and project grants (which were to involve "1 year commitments" and may be funded only twice) and specify that applicants may submit a total of two applications. The 96-97 Guidelines specify that Review Panels, "composed of independent and objective experts and patrons in each discipline," would evaluate and rate applicants' Artistic Excellence and Audience Development, receive evaluations of each applicant's Administrative Capacity from the DACA staff, and make funding recommendations. Three Review Panels would evaluate applications in three different subject areas: Performing Arts, Visual Arts, and Multi-Disciplinary. In the evaluation process, applicants were grouped according to the size of their organizations; the groups were 1) organizations with annual budgets of more than $1 million; 2) those with budgets of $100,000 to $1 million; and 3) those with budgets of less than $100,000.

25. The 96-97 Guidelines provide that the Peer Review Panels' funding recommendations would be provided to the applicants' and presented to the Cultural Arts Board ("CAB"), which consisted of members appointed by each Member of the City Council. The CAB would hold public meetings, make preliminary funding recommendations, and issue final funding recommendations to the Director of DACA for presentation to the City Council as part of the DACA budget.

Two-Year Operational Grant Under the 96-97 Guidelines

26. In 1996, under the 96-97 Guidelines, Esperanza applied for an operational grant for its general arts programing, PazARTE. Esperanza was ranked Number ONE by the Multi-Disciplinary Panel evaluating Esperanza's two-year operational support grant. That Panel recommended operational support of $80,000 for the Esperanza Center's PazARTE programing. The Cultural Arts Board reduced the recommended level of funding for Esperanza to $45,000 for the two-year operational grant. The CAB operational grant recommendations were included in DACA's proposed budget, which was reduced by an across-the-board cut of 2% for non-youth-oriented programs and approved in September, 1996, for an amount of $44,100. To this DACA added $3,594 from TCA funds. Thus, Esperanza received $47,694 in the first of a two-year operational grant from DACA for FY 1996-97.

One-Year Project Grants Evaluated under the 96-97 Guidelines

27. In 1996, the Esperanza also applied for a project grant for its Visiones de Esperanza: Inner City Youth Media Project. Esperanza was again ranked Number ONE by the Visual Arts Panel for Visiones de Esperanza. The panel recommended funding of $24,931 for this project. The Cultural Arts Board reduced the recommended funding for Visiones de Esperanza to $17,465. This amount was included in DACA's proposed budget. and was reduced as part of an across the board 1% reduction for youth-oriented programs adopted by the City Council in September, 1996. Thus, Esperanza received $17,291 in project support from DACA for FY 1996-97.

28. The Media Project applied for a project grant for the Out at the Movies film festival for FY 1996-97. The application was favorably evaluated by the Visual Arts Peer Panel and the CAB recommended a project award of $8,000. This amount was included in the proposed budget and reduced by the City Council's across-the-board reduction for non-youth-oriented programs to $7,840. To this DACA added $1,115 in TCA funds, so that the Media Project received a project grant award of $8,955 for FY 1996-97.

San Antonio Public Arts Funding Decisions for FY 1997-98

The Defunding of Esperanza, the Media Project, and VaN

Controversial Attacks on the Esperanza Center

29. The Esperanza Center presents, facilitates, and sponsors a wide range of artistic, cultural, and social justice events and activities, with special emphasis on the arts and cultures of subordinated groups, including the disabled. Among all of this work, significant public controversy has focused on the Esperanza Center's work in four areas: Esperanza's commitment to and advocacy of multiple diversity in art and arts organizations; Esperanza's work and support for women's reproductive rights; Esperanza's programing involving Cuba and liberation movements throughout the Americas; and Esperanza's programing of lesbian and gay artists, including its co-sponsorship, with the Plaintiff Media Project, of Out at the Movies: Lesbian & Gay Film Festival.

30. From its beginning, the Esperanza Center has been committed to building bridges among diverse communities and to addressing the multiple issues of race, class, gender, sexuality, religion, and disability that operate to divide communities. The Esperanza Board of Directors holds itself to this commitment to diversity, as does each member of the Esperanza network of organizations. Multiple diversity among individuals strengthens an organization and enables the organization to understand and address the needs and aspirations of diverse communities. Such diversity is especially important in art and educational organizations, and Esperanza has consistently urged greater diversity in the composition of San Antonio's major arts organizations. In 1994, representatives of Esperanza joined and played a prominent role in the Coalition for Cultural Diversity (a group of approximately 50 individuals and organizations), arguing for the recognition of diversity concerns in public art funding.

31. In October 1996, several individuals, including several Esperanza staff members, organized a non-violent, pro-choice counter-demonstration in front of the Esperanza Center on San Pedro, in response to the "Chain of Life" demonstration organized by several right-to-life organizations. Several right-to-life demonstrators objected to this "pro-choice zone." In addition, at various times, the Esperanza Center and several of its network organizations have sponsored meetings, exhibits, and other art and educational programs regarding reproductive rights of all women and men.

32. Throughout its history, the Esperanza has sought to increase understanding of the struggles of people throughout the Americas and the Caribbean and to encourage interaction and cooperation among people in Texas, the Americas, and the Caribbean. A significant portion of the Esperanza's programing is committed to art, cultural education, and social and political analysis regarding the Americas and the Caribbean, including programs focusing on the art, culture, and revolutionary struggles in Cuba, Nicaragua, Guatemala, and Mexico.

33. As reflected in its mission statement and strategic plan, the Esperanza is committed to supporting the arts, cultures, and lives of "those wounded by domination and inequality - women, people of color, lesbians and gay men, the working class and poor." The Esperanza Center programing features the work of individuals and groups whose work and lives have been marginalized by mainstream arts and culture. Many of the artists in the Esperanza's programs and a majority of the Esperanza's staff and board are women, many are people of color, many are lesbians or gay men, and many are working class or poor. Since 1992, the Esperanza Center has annually co-sponsored, with plaintiff Media Project, Out at the Movies: Lesbian & Gay Film Festival.

34. Yet this work and advocacy has caused some people to decry the Esperanza and to call for its termination. Some critics have decried the Esperanza Center for its advocacy of diversity in the arts and in arts organizations. Others have denounced the Esperanza Center as "pro-communist" and "pro-Castro" for its work regarding liberation movements in the Americas and "pro-abortion" for projects involving women's reproductive rights. Still others have accused Esperanza of promoting "immorality," "corruption," and "perversion" because of the Center's support for lesbian and gay artists. At times, opposition to the Esperanza's views and work has been demonstrated by shocking personal attacks on the Esperanza Center's staff and board of directors, including false accusations, hate-filled attacks on individual staff and artists, and even feces anonymously-hung in a woman's bra from a tree in the Esperanza courtyard and smeared on the Esperanza Center building and main entrance.

The 1997 DACA Review Process

35. For the Fiscal Year 1997-98, DACA again proposed and the City Council approved Guidelines for the Arts Funding Program (the "97-98 Guidelines"). These Guidelines are identical to the 96-97 Guidelines in their funding program objectives and the criteria for evaluation of funding applications. The 97-98 Guidelines differ from the 96-97 Guidelines in two ways relevant to this litigation. First, the 97-98 Guidelines explain that DACA was chosen as a Decentralization Program Site for the TCA re-granting program in the Advancement and Services category. Under this program, organizations that previously applied to the TCA for operational and project support in this category would now apply to DACA for funding. The 97-98 Guidelines state that "The Texas Commission on the Arts selected the Department as a Decentralization Program Site because of our Arts Funding Program objectives," which are quoted in paragraph 21 above, with particular emphasis on the objective of "funding should affirmatively encourage and facilitate the participation of culturally diverse populations, geographically underserved neighborhoods and economically disadvantaged populations and the disabled," because according to the Guidelines, "TCA's Equity Mandate is incorporated in this objective). Second, the 97-98 Guidelines provide that the Peer Review Panels will evaluate and rank the applications, and that CAB will make preliminary funding recommendations following receipt of the panel recommendations.

Second-Year Operational Grant Recommended for the Esperanza Center

36. In January, 1997, Esperanza timely submitted a "Second-Year Operational Grant Application FY 1997-98," as invited by DACA for organizations who had received two-year funding approval in 1996. Because it was a second-year application, this was not part of the review panel ranking and recommendation process. Accordingly, following successful review of Esperanza's FY 1996-97 operations, the CAB recommended operational support for the Esperanza's general art programming, PazARTE, of $49,429 (of which $44,100 was to come from City Hotel / Motel Tax revenues and $5,329 was to come from the TCA decentralized re-granting funds, which were to be administered by the City for the first time in 1997).

Project Grants Recommended for the Esperanza, the Media Project, and VaN

37. In January, 1997, Esperanza applied for a project grant of $32,350 for Visiones de Esperanza: Inner City Youth Media Project for FY 1997-98. This grant was favorably evaluated by the Visual Arts Panel, and the CAB recommended a project grant in the amount of $17,290 (of which $11,746 was to come from City Hotel / Motel Tax revenues and $5,544 was to come from TCA funds). The Esperanza was notified of the final CAB recommendations by letter dated August 5, 1997.

38. In January 1997, the Media Project applied for a project grant of $10,000 for Out at the Movies 1997, with the Esperanza as its fiscal agent. The Visual Arts Panel favorably evaluated this application and the CAB recommended a grant of $ 7,840 (of which $5,326 was to be from City Hotel / Motel Tax revenues and $2,514 from TCA funds). The Media Project was notified of the final CAB recommendations by letter dated August 5, 1997.

39. In January 1997, VaN applied for a project grant of $ 5,000 for FY 1997-98, with Esperanza as its fiscal agent. The Multi-Disciplinary Arts Panel reviewed this application, and following submission of additional information, the CAB recommended funding of $2,000 (of which $1359 was to be from City Hotel / Motel Tax revenues and $641 in TCA funds). VaN was notified of the final CAB recommendations by letter dated August 5, 1997.

40. By memorandum dated August 23, 1997, DACA tendered to Esperanza an Operating Agreement and related attachments, specifying an allocation of $62,531, which is the total for the City Hotel / Motel Tax revenue portion of the operational and project grants for the Esperanza Center ($44,100 operational grant plus $11,746 project grant, totaling $55,846) and of the project grants for the Media Project ($5,326) and VaN ($1,359) for which Esperanza was the fiscal agent/sponsor.

The 1997 City Council Budget Deliberations and the City's Defunding Decisions

41. The City Council is a policymaker with respect to city-funded arts grants. Based on information and belief, the City Council held one City Council Goals and Objectives Worksession in June, 1997, and eight City Council Budget Worksessions during June and July, 1997. In attendance were Mayor Howard Peak, all or almost all of the Council Members, approximately twenty-two community members invited by the Mayor and Council Members (two invitees each), and members of the City staff, including members of the City Budget Department. At these Worksessions, a quorum of Council Members deliberated aspects of the FY 1997-98 City Budget, including the DACA operational and project grant funding budget and developed the Proposed FY 1997-98 City Budget. These meetings were not open to the public and no minutes or tapes of these meetings are available for public inspection and copying.

42. Upon information and belief, the Proposed FY 1997-98 City Budget was made available to the public in late-August, 1997. Pages 439 to 445 of the Proposed FY 1997-98 City Budget details the proposed DACA budget for Arts and Cultural Programs, totaling $2,281,503. On pages 439 and 442, $62,531 is allocated to the Esperanza Center. This amount includes the recommended awards to the Media Project ($5,326) and to VaN ($1,359) as well as the Esperanza Center's award of $55,846 (for the PazARTE operational support and the Visiones de Esperanza Inner City Youth Media Project). Apparently the City included the Media Project and VaN awards in the Esperanza Center allocation because Esperanza was the fiscal agent for those proposals. The Proposed City Budget did not reflect any amount for the TCA fund allocations recommended by CAB and DACA, as that money is distributed by DACA without inclusion in the City Budget.

43. Upon information and belief, the City Council held two public hearings on the Proposed FY 1997-98 City Budget, on September 2 and 11, 1997. Shortly before the September 2 hearing, Esperanza Center staff and Media Project and VaN volunteers heard rumors that some City Council Members would propose significant reductions in the DACA arts and cultural programs budget, so members of the Esperanza staff and members of Media Project attended the public hearing, along with representatives of several other arts organizations, with the intention of addressing the City Council in support of DACA and its arts and cultural programs funding projects. At that hearing, however, two or three speakers attacked the Esperanza and the Media Project, focusing particularly on the Out at the Movies: Lesbian & Gay Film Festival that was planned by the Media Project and co-sponsored by the Esperanza and scheduled to open on September 24, 1997. This was the first time Esperanza, the Media Project, and VaN became aware of criticism of DACA's FY 1997-98 proposed grants to the Esperanza and the organizations for which it was fiscal agent. Speakers characterized Esperanza and the film festival as "immoral," "harmful," and promoting "the homosexual agenda." In response, Graciela Sánchez, Executive Director of the Esperanza and several Esperanza supporters spoke in defense of the funding for the arts in general and for the Esperanza in particular.

44. Upon information and belief, during the next nine days, Council Members received numerous telephone calls and personal pleas demanding the defunding of the Esperanza Center. The telephone calls and personal pleas were based, in part, on a "Family Alert" leaflet that was distributed to many Northside homes by the pro-life and other right-wing activists. The leaflet states:

____________________

Family Alert

Included in the proposed budget for the city council is an item of great importance to those protecting family values!

The gay & lesbian community has an organization called the Esperanza Peace & Justice Center which will be funded for $62,631.00 of our city tax dollars (if the budget is passed as written).

Please call your city council representative and the mayor, insisting that they do not approve this item on page 442 of the proposed budget! Let them know you vote -- and you will watch to see how they voted on this item!!!

____________________

45. Upon information and belief, the telephone calls and pleas were also based, in part, on one or more talk-radio shows, which characterized the Esperanza as "pro-abortion" and "pro-homosexual" and "pro-communist" and urged listeners to pressure Council Members into cutting Esperanza from the City Budget. The telephone calls and personal pleas to Council Members were also based on several individuals who disagree with programs, projects, and positions of the Esperanza Center and its staff, particularly involving Esperanza's work in support of diversity in art and education, educational programs on Cuba and Latin American Liberation Movements, and women's reproductive rights and who actively spread rumors and falsehoods about Esperanza and individual Esperanza staff and board members, the Media Project, and VaN.

46. Upon information and belief, during the nine days between September 2 and September 11, 1997, Council Members deliberated on the City Budget and/or on the de-funding of Esperanza in closed meetings that were not publicly noticed, were not open to the public, and for which no minutes or tapes are available for public inspection and copying. Some of these meetings included a quorum of Council Members and/or a group of Council Members who knowingly conspired to meet in numbers less than a quorum for the purpose of avoiding the requirement of open meetings for City Council deliberations.

47. On September 11, without any discussion by Council Members in a public meeting, and despite the very positive rankings and recommendations by the DACA review panels, Cultural Arts Board, and DACA staff, the City Council unanimously approved a Budget that included the following two lines:

__________

15% Reduction in Arts & Cultural Affairs Dept. $118,444

. . . .

Eliminate Contribution to Esperanza Peace and Justice Center $53,151

_____________________

By this action, the City Council eliminated all funding to the Esperanza, the Media Project, and VaN, while all other arts organizations were equally subjected to an across-the-board 15% reduction. Upon information and belief, the Esperanza, the Media Project, and VaN are the only organizations ever singled out for elimination by the City Council in the entire history of DACA arts funding.

48. Following this action by the City Council, Eduardo Díaz, Director of DACA and the City policymaker with respect to distribution of TCA funds, refused to distribute the TCA monies allocated to Esperanza ($10,873), the Media Project ($2,514), and VaN ($641) (for a total of $14,028). Upon information and belief, TCA informed DACA that the TCA monies should be distributed according to the CAB recommendations and DACA nevertheless refused to distribute the TCA monies to the Plaintiffs.

49. Upon information and belief, the City Council decided to totally defund the Esperanza, the Media Project, and VaN because of, or in deference to, prejudice and animus expressed in the radio, telephone, leafleting, lobbying, testifying, rumor-mongering, false-allegation campaign against the Esperanza alleged above. Although the City Council did not publicly discuss reasons for the total defunding of Esperanza, the Media Project, and VaN, various members of the City Council explained the decision by saying that Esperanza was "too controversial" or that Esperanza "brought it on themselves."

50. Upon information and belief, the City Council decided to totally defund Esperanza because of their own disapproval of the viewpoints expressed by the Esperanza, the Media Project, and/or VaN or because of their acquiescence in others' disapproval of these viewpoints. Again, upon information and belief, although the City Council did not publicly discuss reasons for the total defunding of the Plaintiffs, various City agents explained that the decision was due to Esperanza's views and advocacy on a wide range of issues.

Consequences of the Defunding and Related Actions for the Esperanza, Media Project, and VaN

51. As a consequence of the FY 1997-98 defunding of the Esperanza, the Esperanza has had to cancel the Visiones de Esperanza: Inner City Youth Media Project and significantly curtail its PazARTE programming, including cancellation of the 1998 Other Americas Film Festival, reduction in the MujerCanto performances, curtailment of the MujerARTES artists' empowerment project, and restriction of the Platicas forum for writers and other speakers. The Media Project has had to curtail development of the Out at the Movies film festival. VaN has had to eliminate virtually all of its performance, exhibition, and networking support.

52. In addition, the Esperanza, the Media Project, VaN, and other organizations associated with the Esperanza have been marked as if they are "untouchable" within the arts funding process, as the chilling effects of the fear, hatred, animosity and disapproval upon which the 1997 defunding decisions apparently were based are felt throughout the community and are known, feared, and considered throughout the FY 98-99 funding process and hereafter. Evaluation of and decisions about FY 98-99 applications submitted by the Esperanza, the Media Project, and other organizations associated with the Esperanza were affected by the City's 1997 defunding decisions and their continuing consequences. In addition, fundraising efforts by the Esperanza, the Media Project, and VaN have been adversely affected by the City's defunding decisions. These and other irreparable injuries have occurred and will continue to occur so long as the City continues or threatens to continue the policies and practices that led to the defunding.

53. The Esperanza, the Media Project, and VaN have all suffered irreparable harm as a consequence of the 1997 defunding, for which there is no adequate remedy at law.

San Antonio Public Arts Funding Decisions for FY 1998-99

Continuing Effects of the 1997 Defunding, Unconstitutional Retaliation, and Unconstitutional Conditions

The 1998 DACA Review Process

54. Upon information and belief, for the Fiscal Year 1998-99, DACA again proposed and the City Council approved Guidelines for the Arts Funding Program (the "98-99 Guidelines"). These Guidelines are virtually identical to the 97-98 Guidelines in their funding program objectives, the criteria for evaluation of funding applications, and the stated procedure for decisions on funding applications.

55. Upon information and belief, DACA announced, at some point during the FY 98-99 application review process, that operational grants, which had previously been on a two-year cycle, will now be on a three-year cycle, so that FY 98-99 operational grants will be extended through FY 2000-2001, and that no new operational grant applications will be accepted until the FY 2001-2002 funding process. Decisions made this year, in other words, will determine an agency's operational funding for the next three years.

FY 98-99 Three-Year Operational Grant and One-Year Project Grant Recommended for the Esperanza Center

56. In March, 1998, Esperanza timely submitted an "Operational Grant Application" requesting $100,000 to help support the Esperanza's PazARTE programing and a "Project Grant Application" requesting $40,000 to help support the Visiones de Esperanza: Inner City Youth Media Project. The operational support application was assigned to the Multidisciplinary Peer Review Panel for evaluation and the project grant was submitted to Visual Arts Peer Review Panel.

57. The Esperanza's operational grant application was rated very high in Artistic Excellence, Audience Development, and Administrative Capacity by the Multi-Disciplinary Peer Review Panel and the application received a high overall rating of 93.29, which placed it high among comparable applications. Similarly, the Visual Arts Peer Review Panel evaluated the Esperanza's project grant application as outstanding in Artistic Excellence, Audience Development, and Administrative Capacity and awarded it a 97.37 rating.

58. At a meeting on July 28, 1998, in determining its recommended amounts for operational grants, the CAB generally began with the amount of an agency's previous operational grant (from the two year FYs 96-98 cycle) and then considered reasons to increase or decrease that amount for the next funding cycle. In its discussion of the Esperanza's operational grant application, several CAB members expressed concern about the City Council's 1997 defunding of the Esperanza. One CAB member said it is a gamble to recommend any money for the Esperanza because if the City Council again defunds the Esperanza, the money will not be available for other arts agencies. Another said that people in her District opposed the Esperanza. These CAB members argued that these were reasons to grant the Esperanza Center significantly less than what the CAB should otherwise recommend.

59. Following this discussion, the CAB voted to recommend a three-year operational grant for the Esperanza's PazARTE programing in the amount of $20,000 and a one-year project grant for the Visiones de Esperanza of $2,000. DACA accepted this recommendation and included a $22,000 allocation in the Proposed Budget that was presented to the City Council on August 13, 1998.

FY 98-99 Project Grant Not Recommended for the Lesbian & Gay Media Project

60. In March, 1998, the Media Project timely applied for a $10,000 project grant to support Out at the Movies 1998, with the Esperanza as its fiscal agent. The MultiDisciplinary Arts Panel favorably evaluated this application.

61. Despite the very favorable evaluation by the Multi-Disciplinary Arts Peer Review Panel, the CAB did not recommend funding for the Media Project. At a meeting on July 29, 1998, at which a quorum of six CAB members was present, one CAB member moved that the Media Project be recommended for $2,000 in funding. A vote was taken on that motion and the tally was four in favor and two opposed, with one abstention. Under CAB practice followed up to that time a majority vote of a quorum of the CAB membership was sufficient to constitute passage of a motion. Following this vote on funding for the Media Project, however, DACA staff member Ernesto Rubio announced that the motion did not pass on the ground that CAB recommendations must be approved by a majority of the entire CAB. Since the entire CAB consists of eleven people, no recommendation could be made with less than six votes.

62. Following Ernesto Rubio's statement, confusion ensued, as the CAB had, earlier in the same meeting and in previous meetings, passed some recommendations with a four to two vote. Eventually it was decided that the CAB would accept Mr. Rubio's interpretation and would re-vote on earlier determinations that had been made earlier in the meeting with less than six favorable votes. In all but one case, some CAB members changed their previous votes to ensure six positive votes for previously decided recommendations. The one project grant application on which votes were not changed was the Jewish Community Center's. No re-vote was taken on the Media Project's application, and a recommendation of no funding was given to the DACA staff.

63. Upon information and belief, the two negative votes against the Media Project's application were made because of those CAB members own disapproval of the viewpoints expressed by the Media Project or because of their acquiescence in others' disapproval of these viewpoints and animus against the Media Project. Upon information and belief, the CAB's change in its voting practices, made in response to the suggestion of DACA staff, was motivated by CAB members, and/or DACA staff members own disapproval of the viewpoints expressed by the Media Project or because of their acquiescence in others' disapproval of these viewpoints and animus against the Media Project.

64. Following this determination, the Media Project timely appealed the zero funding recommendation, arguing that the DACA failed to follow published application and review procedures, that undue influence was placed on the CAB against the Media Project through the participation of a CAB member who admittedly had a negative conflict of interest with the Media Project, that the recommendation was based on insufficient information through no fault of the applicant, and that CAB's recommendation was based on information not related to the merits of the application. At the next a meeting of the CAB, David Kinder announced that the appeals committee had decided that all of the appeals should be denied, because there were no grounds warranting reversal of the CAB decisions.

65. After the CAB determined its arts funding recommendations, the CAB Chair appointed a committee to review appeals from those applicants who had received zero funding recommendations. The DACA Guidelines provide a right of appeal from zero funding applications but in the past, appeals were heard by the entire CAB. In selecting members of the appeals committee, the Chair selected three individuals whom she knew to be unsupportive of funding for the Media Project, two who were the only negative votes on the Media Project motion -- Otis Parchman and Elizabeth Lopez -- and one who had an announced negative conflict of interest with the Media Project -- David Kinder.

Retaliation Against Esperanza and Media Project, Imposition of Condition that Plaintiffs Drop This Lawsuit

66. The Plaintiffs filed this lawsuit against the City of San Antonio and Mayor Howard Peak on August 4, 1998. Later that day, City Attorney Frank Garza appeared on Fox TV29 and stated:

"This Council, if the suit is filed, will have no choice but to really not fund them, because our current contracts say that if an entity sues the City, then you lose funding, because we're not going to fund someone to sue us."

Upon information and belief, at that time no arts funding contract included a term saying that funding will be denied to an agency if that agency files suit against the City.

67. During August, the Defendants repeatedly asserted, both in correspondence with the Plaintiffs and in public statements to local and national new media, that the City will deny any City contracts or other funding to the Plaintiffs because of the lawsuit.

68. On September 2, 1998, a special CAB meeting was called to reconsider the recommended funding of $22,000 for the Esperanza. Following a meeting with an Assistant City Attorney, which was closed to the public, members of the CAB repeatedly questioned Graciela I. Sánchez, Executive Director of the Esperanza, about whether the Esperanza would withdraw its lawsuit against the City. After Ms. Sánchez informed the CAB that Esperanza would not drop its lawsuit, the CAB voted to amend its previous recommendation regarding the Esperanza Center and to provide no funding for the Esperanza Center. At that meeting, CAB members referred to a "City rule" against funding any organization that has an "adversarial relationship" to the City.

69. On September 3, 1998, DACA Director Eduardo Díaz informed the City Council that DACA had amended its proposed budget to remove funding for the Esperanza, based on the CAB vote, and that the CAB action was made pursuant to the recommendation of the City Attorney.

Public Animus Campaign Against the Esperanza, Encouraged by Members of the City Council

70. During August and September, 1998, KSLR Talk Radio Show host Adam McManus repeatedly attacked the Esperanza, on the air, as "pro-homosexual" and "pro-abortion" and devoted several programs to encouraging listeners to "take a stand" against arts funding for the Esperanza. During these broadcasts, the Esperanza was described in emotionally charged and misleading terms and misinformation was given about the Esperanza.

71. On September 17, the day of the City Council's scheduled vote on the FY98-99 Proposed City Budget, Adam Mcmanus was given a room in the City Council Building from which to broadcast a show devoted to encouraging listeners to attend the City Council meeting to show their disapproval for the Esperanza. In this and other broadcasts, the Esperanza was described as "pro-homosexual" and "pro-abortion."

72. Upon information and belief, some members of the City Council appeared on the Adam Mcmanus Show and other radio shows and encouraged listeners to work against funding for the Esperanza or expressed their willingness to vote against the Esperanza.

Zero Funding for the Esperanza Center and the Media Project

73. On September 17, the City Council passed the FY 98-99 City Budget with zero funding for the Esperanza Center and zero funding for the Media Project.

74. Upon information and belief, the Defendants decided not the fund the Esperanza and the Media Project for FY 98-99 in retaliation for the Plaintiffs filing this lawsuit and by imposing an unconstitutional condition, as alleged above.

75. Upon information and belief, the Defendants decided not to fund the Esperanza and the Media Project for FY 98-99 because of, or in deference to, prejudice and animus expressed in the radio, telephone, leafleting, lobbying, testifying, rumor-mongering, false-allegation campaign against the Esperanza alleged above.

76. Upon information and belief, the City Council decided to not to fund the Esperanza and the Media Project for FY 98-99 because of their disapproval of the viewpoints expressed by the Esperanza and/or the Media Project or because of their acquiescence in others' disapproval of these viewpoints.

Consequences of the Denial of Funding for FY 98-99 and Related Actions of the Defendants for the Plaintiffs

77. As a consequence of the FY 1998-99 defunding of the Esperanza, the Esperanza has had to cancel the Visiones de Esperanza: Inner City Youth Media Project and significantly curtail its PazARTE programming, including significant reduction in the 1999 Other Americas Film Festival, reduction in the MujerCanto performances, curtailment of the MujerARTES artists' empowerment project, and restriction of the Platicas forum for writers and other speakers. The Media Project has had to curtail development of the Out at the Movies film festival.

78. In addition, the Esperanza and other organizations associated with the Esperanza continue to be treated as if they are "untouchable" within the arts funding process, as the chilling effects of the fear, hatred, animosity and disapproval upon which the 1997 and 1998 funding decisions were based are felt throughout the community. These and other irreparable injuries have occurred and will continue to occur so long as the City continues or threatens to continue the policies and practices that led to the defunding.

79. In addition, through actions and policies taken in retaliation against the Plaintiffs, Defendants have in effect declared the Plaintiffs disqualified for any City contracts or funding opportunities and for any federal or state monies administered by the City.

80. The Plaintiffs have suffered irreparable harm as a consequence of the 1998 denial of funding, for which there is no adequate remedy at law.

Closed City Council Deliberations Regarding the FY 98-99 Budget

81. Based on information and belief, the City Council held one City Council Goals and Objectives Worksession in June, 1998, and numerous City Council Budget Worksessions during June and July, 1998. In attendance were Mayor Howard Peak, a quorum or more of the Council Members, approximately twenty-two community members invited by the Mayor and Council Members (two invitees each), and members of the City staff, including members of the City Budget Department. At these Worksessions, a quorum of Council Members deliberated aspects of the FY 1998-99 City Budget, including the DACA operational and project grant funding budget and developed the Proposed FY 1998-99 City Budget. These meetings were not open to the public and no minutes or tapes of these meetings are available for public inspection and copying.

Legal Bases of the Claims

First Claim for Relief: Viewpoint-Based Discrimination in Violation of Freedom of Expression and Civil Rights Act of 1866

82. As alleged in detail in the Factual Allegations of this complaint, which are incorporated herein, Defendants' actions in defunding ~~or failing to fund~~ Esperanza, the Media Project, and VaN, made under color of law and pursuant to policy and practice, constituted viewpoint-based discrimination, in violation of Plaintiffs' rights to freedom of expression, including artistic and political expression, under the First Amendment to the United States Constitution and 42 U.S.C. §1983.

Second Claim for Relief: Violation of Equal Protection of the Laws and Civil Rights Act of 1866

83. As alleged in detail in the Factual Allegations of this complaint, which are incorporated herein, Defendants' decisions to defund or not to fund the Esperanza, the Media Project, and VaN, made under color of law and pursuant to policy and practice, rested upon, and were made because of, or in deference to, prejudice and animus against the Esperanza, the Media Project, and VaN held and expressed by groups and members of the public, and thus were without rational basis, in violation of Plaintiffs' rights to equal protection of the laws under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. §1983.

Third Claim for Relief: Unconstitutional Retaliation and Unconstitutional Conditions in Violation of Freedom of Expression, Right of Petition, and Civil Rights Act of 1866

84. As alleged in detail in the Factual Allegations of this complaint, which are incorporated herein, Defendants' actions in failing to fund the Esperanza and the Media Project, made under color of law and pursuant to policy and practice, constituted unconstitutional retaliation and unconstitutional conditions, in violation of Plaintiffs' rights to freedom of expression and rights to petition the government for a redress of grievances, including the right to complain of Constitutional violations and the right to file suit seeking relief from such violations, under the First Amendment to the United States Constitution and 42 U.S.C. §1983.

Fourth Claim for Relief: Violation of the Texas Open Meetings Act

85. As alleged in detail in the Factual Allegations of this complaint, which are incorporated herein, the City Council, the governing body of the Defendant City of San Antonio, and Council Members, in their official capacities as members of the governing body of the Defendant, deliberated on the City Budget and on the defunding of the Esperanza Center, the Lesbian & Gay Media Project, and VaN in closed meetings in violation of the Texas Open Meetings Act, Texas Government Code, §§ 551.001 et seq.. Plaintiffs are entitled to sue for violation of the Texas Open Meetings Act pursuant to Texas Government Code, §551.142.

VI.

Prayer for Relief

86. Esperanza, the Media Project, and VaN request this Court for relief in the following forms:

A. That the Court declare that the Defendants have violated the First Amendment and Fourteenth Amendment rights of the Plaintiffs and that further decisions and other actions based on the viewpoints of the Plaintiffs, made in deference to prejudice or animus against the Plaintiffs among members of the public, made in retaliation against the Plaintiffs for exercise of their Constitutional rights, or imposed on the Plaintiffs as a condition of arts funding contracts, would violate Plaintiffs' First and Fourteenth Amendments; and that the Defendants have violated the Texas Open Records Act by holding deliberations in closed meetings without public notice, access, and available minutes and that further use of closed meetings for deliberation would violate the Texas Open Meetings Act;

B. That the Court issue a Permanent Injunction, enjoining Defendants City of San Antonio and Mayor Howard Peak, the City's agents and employees:

1. From continuing to exercise viewpoint discrimination in the City's arts funding decisions and otherwise to interfere with the Plaintiffs' exercise of their rights to freedom of speech;

2. From continuing to base arts funding decisions on prejudice and animus among members of the public and otherwise to interfere with Plaintiffs' rights to equal protection of the law;

3. From continuing to retaliate against the Plaintiffs and other who file suit against the City or otherwise are in an adversarial relationship with the City and from continuing to impose unconstitutional conditions on arts funding contracts;

4. From failing comply with stated, published criteria for arts funding decisions that are not based on the viewpoint of applicants or on the existence of prejudice or animus against applicants;

5. From implementing decisions, including City Budget decisions, that were deliberated in closed meetings or were affected by deliberations and decisions made in closed meetings in violation of the Texas Open Meetings Act;

C. That the Court enter judgment voiding the Defendants' decision to defund the Plaintiffs for FY 1997-98 and the decision not to fund the Plaintiffs for FY 1998-99; reinstating operational and project grants to the Plaintiffs in the composite amounts of $76,559 for FY97-98; $100,000 for each year of the three-year (1998-2001) operational grant; and $50,000 for the FY98-99 project grants; or such amounts as the Court deems just and proper; and awarding compensatory damages in an amount equal to the wrongfully withheld funding, or such amount as the Court deems just and proper;

D. That the Court award Plaintiffs their costs of suit and attorneys' fees under 42 U.S.C. §1988 and Texas Government Code, §551.142; and

E. That the Court order such other and further relief as the Court deems just and proper.

Respectfully Submitted,

Amy H. Kastely, Esq.
Carol Bertsch, Esq.
Mary Kenney, Esq.