Motion
for Summary Judgment

Plantiffs' Response

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' Response in Opposition to Defendants' Motion for Summary Judgment

INTRODUCTION

Defendants' Motion for Summary Judgment must be denied. First, it is supported by an incomplete rendition of the uncontested facts.⁽¹⁾ In addition, it is based on an incorrect analysis of the applicable First Amendment and Equal Protection law, and Defendants have failed to establish their claim to summary judgment under applicable law.⁽²⁾ Under Rule 56(c), summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c), See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). For the reasons stated in the following Brief and in Plaintiffs' Brief in Support of Summary Judgment, the full and undisputed record submitted by Plaintiffs and Defendants clearly establishes that Defendants' motion for summary judgment must be denied.⁽³⁾

I. Defendants Fail to Establish That They Would Have Defunded the Plaintiffs' in the Absence of Viewpoint Discrimination or that their Viewpoint Discrimination was Narrowly Tailored to Achieve a Compelling Governmental Purpose and Thus Fail to Establish That They Did Not Violate The First Amendment.

Defendants move for summary judgment on Plaintiffs' First Amendment claim by arguing first that, as a matter of law, the City was free of constitutional restraints with regard to its arts funding decisions. Without heeding the majority decision in NEA v. Finley, 524 U.S. 569 (1998), the most recent Supreme Court decision to address the First Amendment in the context of arts funding, and relying instead on Rust v. Sullivan, 500 U.S. 173 (1991), a case that did not involve arts funding, the Defendants erroneously claim that the government is entitled to pick and choose among different points of view in its arts funding decisions. Defs. Br. at 4. Even though the Finley Court upheld the "decency provision" of the NEA legislation against the allegation that it was facially unconstitutional, the majority in Finley held that "the First Amendment certainly has application in the subsidy context," and observed "even in the provision of subsidies, the Government may not 'ai[m] at the suppression of dangerous ideas,'" 118 S.Ct. at 2178-2179.

Alternatively, the Defendants argue that the City's decision to deny the recommended funding to the Esperanza -- a decision which was undisputedly directed at the Esperanza alone among all arts applicants -- was not motivated by consideration of the viewpoint ascribed to the Esperanza. Defs. Br. at 5. Yet, the very reasons for the defunding asserted by the Defendants demonstrate the viewpoint motivation behind the decision: Council Members' perception that the Esperanza was espousing political or social issues; Council Members' adoption of their constituents' opposition to the content of the programming of the Esperanza; and Council Members' response to the Plaintiffs' advocacy on their own behalf.

A. Defendants Misstate the Applicable Legal Standard Governing an Infringement Of the First Amendment in the Arts Funding Context.

Defendants' motion for summary judgment on Plaintiffs' First Amendment claim is based on a significant misstatement of the First Amendment law that applies to this case. Defendants correctly reference NEA v. Finley, 524 U.S. 569, 118 S.Ct. 2168 (1998) as one of the governing Supreme Court cases. Astonishingly, though, Defendants rely upon the concurring opinion whose rationale is endorsed by only two members of the Court, and ignore the majority decision in that leading case. In fact, Justice Scalia's concurrence expressly distances itself from the majority of the Court by arguing that the First Amendment does not apply to art funding or other tax subsidy cases. 118 S.Ct. at 2182-83 (Scalia, J., concurring). The Constitution does not sanction his claim that "[i]t is the very business of government to favor and disfavor points of view," nor does it allow the government to "selectively fund certain programs to the exclusion of others" when it does so in order to disapprove particular points of view. Defs. Br. at 1, 4-5 (quoting Finley, 118 S.Ct. at 2184 (Scalia, J., concurring)). Rather, as the majority decision in Finley holds, "the First Amendment certainly has application in the subsidy context." Finley, 118 S.Ct. at 2179 (majority opinion).

Most notably, the First Amendment prohibits "invidious viewpoint discrimination" in the arts funding context. Finley, 118 S.Ct. at 2178-79 ("even in the provision of subsidies, the government may not '[a]im at the suppression of dangerous ideas'")(citations omitted). The clearest example of viewpoint discrimination is that alleged here: the denial of government funding because the applicant espouses an unpopular, controversial, or uncommon viewpoint. See, e.g., Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 829 (1995) (defining "viewpoint" as "the specific motivating ideology or the opinion or perspective of the speaker"); see also, General Media Communications, Inc. v. Cohen, 131 F.3d 273, 281 (2d Cir. 1997) (discussing the definition of "viewpoint").⁽⁴⁾

While the Finley majority recognized the "pressing constitutional question" that would arise from "as-applied" viewpoint discrimination in the arts funding context, it did not have occasion to address such a challenge. 118 Sup. Ct. at 2178-79. However, the Court did refer to several cases that dealt with viewpoint discrimination in the context of tax subsidies, thus indicating that a claim of viewpoint discrimination in the context of arts funding must be analyzed in the same manner as other viewpoint discrimination cases.⁽⁵⁾

In this case, the Defendants have alleged that there were several different motives for the defunding of the Plaintiffs. Even assuming, then, that there were "mixed motives" on the part of the government, the correct legal analysis for a viewpoint discrimination challenge requires the Plaintiffs to first demonstrate that "an impermissible motive played a motivating part" in the City's decision to defund them. North Mississippi Communications, Inc. v. Jones, 874 F.2d 1064, 1069 (5th Cir. 1989) (holding that the burden-shifting analysis of Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977), applies to "mixed motive" cases that allege the denial of "public patronage" due to constitutionally protected speech). In this case, Plaintiffs must show that Plaintiffs' viewpoint (ideological orientation, opinion, perspective) was a substantial or motivating factor in the City's decision. Once Plaintiffs make this initial showing, the burden shifts to Defendants to prove that they would have defunded the Plaintiffs even in the absence of the impermissible factor. Id. at 1069.

If the Defendants do not prove that they would have defunded the Plaintiffs even without regard for their viewpoints, then Defendants' action is presumptively unconstitutional. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828 (1995) ("discrimination against speech because of its message is presumed to be unconstitutional."). "When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant." Id. at 829 (citing R.A.V. v. St. Paul, 505 U.S. 377, 391 (1992)); see also Simon & Schuster v. Crime Victims Bd., 502 U.S. 105, 115 (1991) (content- and viewpoint-based discrimination is "presumptively inconsistent with the First Amendment."). The strong presumption against government suppression of certain ideas mandates that viewpoint discrimination can be "justified only if the government demonstrates that its regulation is narrowly drawn and is necessary to effectuate a compelling state interest." Gay and Lesbian Students Association v. Gohn, 850 F.2d 361, 366 (8^th Cir. 1988); see also R.A.V. v. City of St. Paul, 505 U.S. 377, 395 (1992). Thus, once the presumption of a First Amendment violation has been raised by the Defendants' failure to demonstrate that it would have defunded the Plaintiffs even without regard to their viewpoints, the burden shifts to the Defendants to show that the City's action was designed to achieve a compelling government interest and was narrowly tailored to achieve that interest.

B. The City's Arts Funding Program is Not Governed by Rust v. Sullivan Because it is Not Designed to "Convey a Government Message"

Defendants rely on Rust v. Sullivan, 500 U.S. 173 (1991) for their proposition that the City had the "discretion to fund other arts agencies and exclude Esperanza." Defs. Br., at 4-5. This reliance is misplaced. First and foremost, Rust was a "a case of the Government refusing to fund activities, including speech, which [were] specifically excluded from the scope of the project funded." 500 U.S. at 194. Thus, the question facing the Court was the validity of the agency's regulations promulgated to "ensure that the limits of the federal program are carried out." Id. at 193. In contrast, in the present case, Plaintiffs do not question the published and approved limitations placed on the City's arts funding. Rather, Plaintiffs challenge the fact that they were singled out for denial of funding for reasons entirely unrelated to the official criteria for funding. The Supreme Court has made clear that the government's power to limit the kind and scope of activities to be funded under a particular program does not include the right to exclude speech otherwise within the program's limitations. See Rosenberger, 515 U.S. at 829-830.⁽⁶⁾

This distinction between Rust and the present case is fundamental. Without question, the City has chosen what sorts of activities may be funded with arts grants and what criteria should be used in evaluating arts funding applications.⁽⁷⁾ Plaintiffs do not challenge the right of the City to place limits on arts funding -- or the specific limits chosen, either with regard to the definition of activities for which funding may be granted or with regard to eligibility requirements and criteria for applicants. Indeed, Plaintiffs satisfied both the eligibility requirements for an arts funding grantee and also submitted arts funding applications which were rated favorably in the only substantive review undertaken by the City.⁽⁸⁾

Because Rust concerned the validity of regulations defining the kind of activities which could be carried out with government funding, it is not relevant to the issue faced here: whether the City was permitted to single out a qualifying applicant and deny funding to it for reasons outside of both the City's own eligibility requirements and its own competitive process.

Second, Rust was a facial challenge to the agency's regulations implementing the program. The Court was "concerned only with the question of whether, on their face, the regulations are both authorized by the Act and can be construed in such a manner that they can be applied to a set of individuals without infringing upon constitutionally protected speech." Rust, 500 U.S. at 183. Thus, Plaintiffs in Rust had to prove that no set of circumstances exist under which the regulations would be valid, not that they were invalid as applied in a specific circumstance. In contrast, Plaintiffs challenge the constitutionality of a specific funding decision; Rust does not shed light on the standards to be applied to resolve this question, since, as the Court acknowledged, it was not concerned with "the singling out of a disfavored group on the basis of speech content." Id. at 194.

Finally, unlike this case, Rust concerned a program which Congress funded for the purpose of conveying a specific message of the government; thus, the Title X recipients were acting as the voice of the government, as spokespersons for the government's message. Precisely for this reason, the Court found it permissible for the government to regulate the recipients' expressions and to exclude some applicants because of their expressed viewpoints. 500 U.S. at 192-193; see also Rosenberger, 515 U.S. at 833 ("[W]hen the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes" (citing Rust, 500 U.S. at 194).⁽⁹⁾ Such viewpoint-based restrictions are not proper when the government does not itself speak or use others to convey the government's message. Id.

Here, the City has not created its arts funding project to convey a specific message of its own. Rather the City's program is specifically intended to "serve a broad multi-cultural constituency, and to encourage growth and viability within arts of diverse cultures." (See Pls. R.SUF ù 7) Nothing in the Strategic Plan or DACA Guidelines suggests that the City wanted to convey a particular governmental message through its arts funding program.. (See Pls. R.SUF ùù 7,13)

In Finley , the Court suggested that the fact that the National Endowment on the Arts established a competitive evaluation process for its arts funding grants means that N.E.A. arts funding was not a wide-open public forum to which all speakers must be invited without subjective qualifying criteria or evaluation.⁽¹⁰⁾ However, Finley did not suggest the contrary proposition, that the existence of a competitive evaluation process would somehow make the grantees "spokespersons" for the government, such that the government would be free to exclude applicants merely because of their viewpoints.⁽¹¹⁾ Indeed, the Finley analysis suggests a continuum, with one extreme being a wide-open public forum, such as in Rosenberger, in which the government program is available to all who satisfy minimum objective standards,⁽¹²⁾ and the other extreme being a program designed to convey a particular governmental message, such as in Rust, so that the recipient of a government funding speaks, in effect, as the voice of the government. In between - yet closer to Rosenberger than to Rust -- are programs, such as arts funding, in which government has established a process for evaluation and approval, and some of the criteria in that process are subjective. In these cases, the government is entitled to make judgments about applicants based on criteria tied to the purposes of the tax subsidy, but, as the Supreme Court made clear in Finley, the government is not free to exclude applicants on the basis of their viewpoint, 118 S.Ct. at 2178 (First Amendment prevents the government from "leverag[ing] its power to award subsidies on the basis of subjective criteria into a penalty on disfavored viewpoints.")

In short, Rust is entirely inapplicable: the present case does not involve an attempt by Plaintiffs to expand the parameters of the City's arts funding, as occurred in Rust; it is not a facial challenge to the regulations governing arts funding, but rather concerns a specific instance of discrimination in the manner in which the City has disbursed the funding; and finally, the discrimination here is not the result of the City regulating a message to be conveyed through a program it funds, but rather the result of the City's dislike of the viewpoints of the Plaintiffs.

C. The Evidence Fails to Support Defendants' Claim That the City's Decision Was Not Motivated by the Viewpoint of the Plaintiffs.

The Defendants next argue that, regardless of the applicable legal standard, the City's action was not taken in response to the Plaintiffs' viewpoint. Although the Defendants contend that the City's decision to defund the Plaintiffs was "primarily" based upon a desire to maximize revenue available for basic infrastructure needs, Defs. Br. at. 5, they nevertheless acknowledge that this was not its sole motivation. Defs. Br. at 12, ù 25.⁽¹³⁾ Rather, the Defendants identify four additional reasons as motivating the decision: 1) Council Members' perception of the Esperanza as a political/social organization; 2) public opposition to the Plaintiffs; 3) Esperanza's allegedly "tactless" approach to garnering the City's support; and 4) Council Members' desire to reach consensus. Defs. Br. at 13, Å 28. Defendants thus correctly recognize that funding infrastructure needs cannot, in and of itself, explain the City's decision to entirely defund only the Esperanza out of numerous arts organizations. As common sense dictates, and several Council Members acknowledged,⁽¹⁴⁾ there had to be an additional reason to explain why the Esperanza, in particular, was chosen to be defunded in its entirety.

A review of the evidence submitted by the Defendants, along with other evidence of record,⁽¹⁵⁾ demonstrates that three of the alternative motivations suggested by the Defendants were directly related to the viewpoint of the Esperanza and that these viewpoint-driven motivations substantially influenced the decision.⁽¹⁶⁾

1. Esperanza's Promotion of a Political and Social Point of View Through its Arts Programming Is Protected by the First Amendment.

The Defendants argue that the first factor motivating Council Members to target the Esperanza, out of all other arts agencies, was their perception of the agency as a political/social organization. Defs. Br. at 13. Mayor Peak, in particular, distinguished the Esperanza from other arts organizations for precisely this reason: because they "espous[ed] social issues " in their arts programming, Peak Depo. at 70, he believed that the City should not provide them with arts funding. When pressed to explain what he meant by "social issues," Mayor Peak repeatedly could identify only gay and lesbian issues. See, e.g., Peak Depo. at 51, 52, 59, 70, 130. As he explained, "they are very public about that agenda of theirs, and it doesn't fit within arts funding." Peak Depo. at 130.⁽¹⁷⁾

Peak readily acknowledged, however, that the Esperanza's "controversial" programming was arts programming. ⁽¹⁸⁾ Moreover, he was not aware of any City requirement limiting funding to arts programs which did not address social issues. Peak Depo. at 70. He also admitted that he did not know whether other City funded arts agencies espoused a particular point of view on social issues through their arts programming. Peak Depo. at 71. In fact, Peak also explained that he had no personal knowledge of the nature, content or quality of the arts programming of the Esperanza; rather, his evaluation of the content of these programs rested entirely on reports from his constituents and the media. See, e.g., Peak Depo. at 58, 60, 65, 68-69. Conversely, his lack of knowledge about the content of the arts programs of other City funded organizations was due to an absence of constituent feedback regarding these other agencies. Peak Depo. at 71.

Councilwoman Guerrero attributed the lack of support for the Esperanza on the City Council to similar "concern[s] about the political character" of the Esperanza. Guerrero Depo. at 73; Defs. Br. at 8, ù 17. Moreover, she herself considered this a legitimate concern: "in light of [the Esperanza] wanting to receive public funding," she believed that the Esperanza should have "defused" this concern. Guerrero Depo. at 71-72; Defs. Br. at 8, Å 17; see also Guerrero Depo. at 88 (indicating that Esperanza had "overstepped the boundaries in what they are trying to do politically" and that it was not the City's responsibility to fund such political programs); Marbut Depo. at 10 (describing the Esperanza as "community activists pushing a policy, pushing [] points of view"); Vasquez Depo. at 30 (recalls Esperanza as being involved in "political activities").

Defendants do not contest that the Esperanza's applications for City funding were for arts programming, or that these applications met all established eligibility criteria for such funding. Moreover, the Esperanza's applications were consistently rated favorably with regard to artistic merit by the panel of arts experts called upon by the City. Thus, in objecting to art programs which espoused a "social" point of view, Mayor Peak and the other Council Members were not articulating an arts funding restriction imposed by the City, but rather simply expressing their own personal biases. See, e.g., Peak Depo. at 68 (Expressing his "personal view" of the artistic merit of the Esperanza's arts programming as being more "centered on ... moral, and on a social agenda than art specific"); Guerrero Depo. at 88 (indicating her opinion that the Esperanza's art was too "political" to warrant City funding); Webster Depo. at 122 (discussing his personal discomfort with message of the Esperanza, and indicating his belief that tax dollars should not support this); Salas Depo. at 96-97 (admitting that because he found the brochure for the Out at the Movies film festival personally offensive, he opposed all funding for the Plaintiffs).

The "political" and "social" message of the arts programming of the Esperanza is, without question, an expression of viewpoint. Rosenberger, 515 U.S. at 829. The Defendants' admission that the "focus" of certain Council Members was on the political and social nature message behind the Esperanza's arts programming, is an admission that the defunding decision was not viewpoint-neutral.

2. The Public Opposed the Esperanza Because of the Viewpoint Expressed in Their Arts Programming; Council Members' Adoption of this Opposition Constitutes Viewpoint Discrimination.

The Defendants next assert that "public opposition" to the Esperanza was the second "focus" or motivation behind the Council Members' decision. Defs. Br. at 13, ù 28. Plaintiffs agree that public opposition to the Esperanza, including opposition to the Esperanza's actual or ascribed viewpoints, was a substantial motivating factor in the City Council's decisions. And, because the public opposition was viewpoint-related, then the City Council's deference to the public opposition was viewpoint-related. The following details are helpful in evaluating the evidence on this issue.

Councilman Flores believed that public opposition was the reason other Council Members voted to defund the Esperanza. Defs. Br. at 7, ù15. Councilman Garza agreed; he indicated that the "debate that was taking place ... [around the] funding of the Esperanza" rendered them "more vulnerable to defunding than other arts agencies." Garza Depo. at 58-59. Similarly, referring to the quantity of calls received in opposition to the funding of the Esperanza, Guerrero stated that other Council Members had gotten "caught up in the fears of their constituents." Guerrero Depo. at 84-85. Councilman Menendez also acknowledged the influence which constituent feedback had on the 1997 decision to defund the Esperanza; subsequent to the filing of this suit, he asked listeners of a conservative radio show for copies of their letters to Council in 1997, to demonstrate that the decision that year was based upon the desires of the community. Menendez Depo. at 86-87.

Council members agree that much of the public opposition to the Esperanza was in response to its views on gay and lesbian and other social issues.⁽¹⁹⁾ Certain Council Members explained how these views influenced them. For instance, Webster told a radio audience in August of 1998 why he opposed funding the Esperanza:

I am confident that my taxpayers ... do not reflect what [the Esperanza] is bringing forward ... And [] what I'm sent down there to do is represent the people, their desires, what they think the priorities should be, and this is certainly not a priority and not a group that my constituents are telling me that they want me to support.

Webster Depo. at 122. He subsequently explained these comments as follows:

My personal beliefs are I'm not gay or lesbian ... My thoughts are not a supporter ... [a]nd don't reflect the type of group -- ... my constituents don't want my tax dollars spent [on the Esperanza].

Webster Depo. at 134.

All of Peak's information about the Esperanza came from his constituents and the media; based upon this information from the public, he determined that the Esperanza's views on "social issues" -- i.e. gay and lesbian issues -- made them an inappropriate agency for City arts funding. Peak Depo. at 62-63; 68-69; 70. As he explained to a reporter shortly after the 1997 vote to defund the Esperanza, his perception of the organization as "pushing social causes" had "some bearing" on his vote to defund it. Peak Depo. at 128-129.

In addition to recognizing that the public debate over funding rendered the Esperanza more vulnerable than other agencies, Garza testified that the focus of this public debate was the Lesbian and Gay Film Festival for which Plaintiffs had requested City funding. Garza Depo. at 39-40. Councilman Prado testified that his decisions about budget cuts were "reinforced" by the constituent calls which he received. Prado Depo. 88-89. The majority of his constituent calls about the Esperanza were opposed to City funding of the organization. Prado Depo. at 39.⁽²⁰⁾

In short, the evidence demonstrates not only that the public opposition to the Esperanza influenced the City's decision to defund it, but that this opposition centered around the social and political arts programming of the Esperanza, including its arts programming on gay and lesbian issues. The Council endorsed this opposition when it voted to please these constituents; in doing so, the Council targeted the Esperanza for defunding because of its viewpoint.

3. Neither Staff Nor Board Members of the Esperanza Engaged in the Demonstrations or Offensive Behavior Alleged by the Defendants and the Alleged Demonstrations Occurred after the City Council Had Agreed to Defund the Plaintiffs, and Thus Could Not Have Been a Motivating Factor in the Council's Decision.

The Defendants assert that "Esperanza's tactless approach to garnering the City's support" was the third "focus" or motivation for the City Council's decision to defund the Plaintiffs. Defs. Br. at 13, ù 28. Several Council Members raised concerns about an alleged demonstration and instances of what they considered to be inappropriate comments. None of these Council Members knew who it was that engaged in this conduct, however, and thus admitted that they did not know whether it was staff or board members of the Esperanza. Moreover, the alleged demonstration and instances of inappropriate comments allegedly occurred after all Council Members had agreed to the defunding of the Plaintiffs by signing the "consensus memorandum" authored by Mayor Peak on September 11, 1997 (See Pls. R.SUF ùù 40-43), .

Thus, for example, referring to the Esperanza, Salas indicated that the tactics "they" used did not help their cause. When pressed to identify who "they" were, Salas could only identify an unknown women from San Francisco who spoke during the City Council meeting on September 11, 1997. Salas Depo. at 99. Similarly, he complained of a demonstration, which he apparently observed on his way to the Council meeting on September 11, 1997, at which Council Member Prado was insulted. Salas Depo. at 100. Prado dismissed it as not being a demonstration but instead identified it as a gathering of individuals who were proponents of "arts funding" in general, not specifically of Esperanza. Prado Depo. at 90. He remembers that someone made a rude comment about him, but did not know who this person was. In fact he did not know anyone in the gathering. Id. at 91-92. Garza remembers a loud crowd in the lobby that day, but did not know how many people there were supporters of Esperanza. Garza Depo. at 68. He believed that director of the Esperanza was present but was not sure. Id. at 70. Certain individuals shouted "Fund the Esperanza." Id. at 71. He does not remember anyone being detained by the crowd, Id., and also could not specifically remember anything else that was said. Id. at 66-67. He remembers that there were threats, not of physical injury, but rather in the context of "I'm going to make sure you don't get elected next time." Id. at 67. Graciela Sánchez, the director of the Esperanza, testified that none of the staff or board planned or participated in a public demonstration around the time of the budget vote. Sánchez Depo. at 106-107. All comments made by Esperanza, Media Project, and VN representatives were made at public hearings before the City Council. Id.

Councilman Webster remembered insulting comments, though he did not know if they came from the leadership of the Esperanza or merely from members of the public who supported them. Webster Depo. at 94. Subsequently, he explained that the behavior of these individuals was similar to that of Jack Finger, an ardent opponent of the Esperanza. Id. at 114-115; 54-55. When asked about a letter from a constituent which mentioned abusive behavior by the Esperanza, Menendez testified that he did not remember either abusive language or offensive behavior. Menendez Depo. at 65. Finally, Mayor Peak testified that proponents of Esperanza were "verging on confrontational." Peak Depo. at 131. When pressed about what this meant, he indicated that these individuals were "just advocating strongly for their position." As he further explained: "[w]e have people that stand up and request funds and go sit down, and then there's [sic] others that are more active or excited about it." Peak Depo. at 132.

While others, unconnected to the Plaintiffs Center, may have engaged in confrontational tactics, such unaffiliated conduct could not permissibly justify defunding of the Esperanza Center, the Media Project, and VN.⁽²¹⁾ Moreover, if the Court does determine that the alleged behavior could have been a permissible justification for the City's conduct, these allegations are based on genuinely contested issue of fact that must be determined at trial. See Plaintiffs' Statement of Material Facts that Contain Genuine Issues to be Tried, ùù 4, 5.

Thus, the Defendants have failed to meet their burden to show that the City would have denied arts funding to the Plaintiffs even in the absence of viewpoint discrimination. To the contrary, the Defendants have suggested alternative motivations that were directly related to the viewpoint of the Esperanza. Under Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977) and North Mississippi Communications v. Jones, 874 F.2d 1064, 1069 (5th Cir. 1989), the Defendants must justify the viewpoint discrimination on the ground that the decisions were narrowly tailored to achieve a compelling governmental interest. The Defendants have made no such showing.

The Defendants argue that because the City funded other groups that were attacked as lesbian and gay-related -- the Alamo City Men's Chorale, the Guadalupe Cultural Arts Center and the Jump Start Performance Co. -- no "discrete class" was "burdened" by the City's defunding of the Esperanza. But the fact that the City continued to fund these other organizations does not defeat the Plaintiffs' equal protection claim. First, the Defendants have not established that these other organizations present lesbian and gay cultural programing. The record contains no evidence on this point. Second, the attacks on the other organizations, such as there were, did not begin until 1998, a year after the Esperanza was first defunded. (See Plaintiffs Supplemental Statement of Undisputed Facts ("Pls. Supp. SUF"), at ù 3). The Defendants' argument is thus immaterial to the 1997 decision.

Moreover, it is a basic principle of civil rights laws that one need not discriminate against every member of the class before one has violated the law. See, e. g., Connecticut v. Teal, 457 U.S. 440, 452-456 (1982). The rights conferred by the equal protection clause of the 14th Amendment "are, by its terms, guaranteed to the individual." Richmond v. Croson Co., 488 U.S. 469, 493 (1989), quoting Shelly v. Kraemer, 334 U.S. 1, 22 (1948). Discrimination against one is not somehow vitiated by non-discriminatory treatment of another. No one would seriously suggest, for instance, that the Japanese internment was not race discrimination because other Asians, or Japanese-Americans not living on the west coast, were not interned. See Korematsu v. United States, 323 U.S. 214, 216, 217 (1944).

In the statutory context, the Supreme Court has firmly rejected arguments of employers that discrimination against some members of a protected class does not violate Title VII if "the bottom line" is that the class as a whole is not disadvantaged. See Phillips v. Martin Marietta Corp., 400 U.S. 542, 544 (1971), Connecticut v. Teal, 457 U.S. 440, 452-456 (1982) ("an employer's treatment of other members of the plaintiffs' group can be of little comfort to the victims of discrimination.") (internal citations omitted). The Court reiterated the principle most recently in an age discrimination case, O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996). There, the plaintiff, at age 56, was fired and replaced by a 40-year-old, also in the "protected class" of those forty and older. The U.S. Supreme Court squarely held that because the ADEA bans discrimination on the basis of age, "The fact that one person in the protected class has lost out to another person in the protected class is thus irrelevant, so long as he has lost out because of his age." 517 U.S. at 312.

Here, Plaintiffs presented overwhelming evidence in their summary judgment motion and statement of uncontested facts, that the defunding occurred because of their lesbian and gay focus. Invoking anti-gay stereotypes and myths, individuals told legislators that they feared the Plaintiffs were perverting the City's youth and corrupting its moral fabric. The evidence shows that the City gave effect to this bias by denying funds allocated to the Esperanza. But a City action that relies on anti-gay animus has an improper purpose under the Equal Protection Clause. Romer v. Evans, 517 U.S. 620 (1996). This is true no matter how the City treated other arts organizations.

What is more, evidence shows that the Esperanza was singled out in part because legislators saw it as too openly lesbian - because it "flaunted" lesbian and gay issues and was "in your face" about them. See Pls. R.SUF, at ùù 48-56; Sánchez Decl. ù 68. This different treatment itself reinforces the conclusion that anti-gay bias motivated the legislators: legislators could tolerate groups that were not visibly lesbian or gay-related. But they could not support those that made their affiliation with the lesbian and gay community apparent and undeniable.⁽²²⁾

Finally, legislators also disfavored the Esperanza because of its outspokenness on political and social issues, an attribute which the other targeted organizations did not share. Yet this reason for singling them out also reveals an unconstitutional intent: to discriminate against their political speech. See Pls. S.J. Br., and cases cited, at 26. In short, the City's funding of other groups that were later targeted as gay-related cannot defeat the conclusion that its treatment of the Esperanza happened because of irrational antipathy toward their identity and their political views -- both improper purposes.

The City argues further that its back-to-basics priorities, its desire to reach consensus,⁽²³⁾ and its goal of promoting tourism furnish rational bases for its decision to cut the Esperanza. Each of these rationales could apply equally to many other arts organizations, yet the City eliminated the Esperanza's grant alone. That action was not a mere "imperfect fit" with the stated goals; it bore neither a "fair" nor a "substantial" relation to them. See Zeigler v. Jackson, 638 F.2d 776, 779 (5^th Cir. 1981). It was, without more, an utterly arbitrary and irrational choice, violating the Equal Protection Clause. Summary judgment for Defendants on Plaintiffs' equal protection claim should be denied.

Defendants submitted an affidavit from every Council Member stating that s/he was aware of this lawsuit, but "the existence of the lawsuit did not affect my decision to support the Adopted Budget . . . ." These statements, however, are not helpful to determine whether the 1998 decision was the product of unconstitutional retaliation. First, under this Court's ruling on legislative privilege, the Council Members' testimony concerning their subjective justifications or motivations is not necessary in light of objective, contemporaneous evidence. 3/15/99 Order, at 9-10. Second, in deposition and in response to discovery requests, the legislators asserted their privilege against testifying about their motives; they cannot now come back through affidavit to state what those motivations were or were not without waiving that privilege and affording the Plaintiffs an opportunity to examine them further. Because discovery is closed, the legislators' new willingness to testify about their motives should be disregarded.

Further, in several instances, the Members' affidavits contradict their earlier deposition testimony, and thus should not be considered. A majority of the Members testified that they believed they were not permitted to fund the Esperanza due to the lawsuit, or that the City policy "had a lot to do with" the defunding of the Esperanza. See Pls. S.J. Br., at n.16. Now they say the lawsuit did not affect their decision to support the 1998 budget.⁽²⁴⁾ Their statements made spontaneously, under oath, belie their form affidavits, and thus should not be considered. See Washington v. Occidental Chemical Corp., 24 F. Supp. 713, 726 (S.D. Tex. 1998) (disregarding affidavit to the extent deposition and later-sworn affidavit conflict). Further, the law does not permit them to create a dispute of material fact merely by contradicting their own prior testimony. S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495-96 (5^th Cir. 1996) ("It is well settled that this court does not allow a party to defeat a motion for summary judgment using an affidavit that impeaches, without explanation, sworn testimony."). For all of these reasons, the legislators' facile assertions that they were not influenced by the lawsuit should not be credited. Plaintiffs showed in their motion that unconstitutional retaliation underlay the 1998 defunding decision. Summary judgment for Defendants on this claim should be denied.

Defendants offer an affidavit of City Clerk Joanne Sanchez and copies of minutes of various City Council meetings to establish that "the proposed budget and the proposed amendments were presented in public and open for discussion among Council." Ds. Br. at 16. Moreover, Defendants contend, the fact that some amendments were proposed by Council Members during their meetings establishes that "the budget was not final until the vote was taken." Id. Defendants suggest that this evidence establishes that the Defendants did not violate the Texas Open Meetings Act, Tex.. Gov't Code ÅÅ 551.001 et seq. To the contrary, this evidence is largely irrelevant to Plaintiffs' claimed Open Meetings Act violation.

The Texas Open Meetings Act requires that " Every regular, special, or called meeting of a governmental body shall be open to the public . . ." Tex. Gov't Code Å 551.002. "Meeting" is defined as "a deliberation between a quorum of a governmental body . . . during which public business or public policy over which the governmental body has supervision or control is discussed or considered . . ." Id. Å 551.001. The Plaintiffs have identified un-noticed, unofficial, closed deliberations that were conducted in violation of the Open Meetings Act. See Amended Complaint, ùù 41, 46, 86; Pls. S. J. Br., at 28-32. The facts relied upon in Defendants' brief do not address these violations.

In their silence on these violations, Defendants seem to suggest that the Texas Open Meetings Act requires merely that an issue be "open for discussion" in a public meeting and that the final vote on an issue be made in a public meeting. See Ds. Br. at 16. But that is not the law. As the Texas Supreme Court observed, "Our citizens are entitled to know more than a result. They are entitled not only to know what government decides but to observe how and why every decision is reached." Acker v. Texas Water Comm'n, 790 S.W.2d 299, 300 (Tex. 1990) (emphasis added). The Open Meetings Act requires not only that there is an opportunity for public discussion and not only that final votes be made in public, but that all deliberations by a majority of the Council be made in open meetings. The record includes uncontested evidence that this requirement was violated in this case. Defendants have failed to address this claim in their motion, so summary judgment cannot be entered in their favor.

CONCLUSION

For the foregoing reasons, and reasons put forth in Plaintiffs' Brief in Support of Summary Motion, Plaintiffs respectfully request that the Court deny Defendants' Motion for Summary Judgment, and grant summary judgment on all of Plaintiffs' claims.

Respectfully submitted,

Amy H. Kastely, Esq.

Mary Kenney, Esq.

Carol Bertsch, Esq.

Ann Beeson

Jennifer Middleton

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1. Although each fact listed in Defendants' Statement of Uncontested Facts is correct and uncontested, these are not the facts upon which Defendants rely in their brief. Rather their brief recites evidence that is not mentioned or referenced in the Defendants' Statement of Uncontested Facts and thus cannot form the basis for summary judgment. See Defendants' Brief in Support of their Motion for Summary Judgment ("Defs. Br.") at 7-12.

2. Defendants also contend that Esperanza is "the only entity with authority to receive funding from the City, and thus, the only proper Plaintiff in this lawsuit." Def.Br. at n. 2. However, the undisputed evidence establishes that the City Department of Arts and Cultural Affairs established the fiscal agency process in order to allow unincorporated associations to apply for arts funding, encouraged such applications, and recommended arts funding grants to such associations, including the Media Project and VN. Sánchez Depo. at 28-30, Diaz Depo. at 149. Moreover, City Council has approved numerous such grants. It is disingenuous for the City to now argue that unincorporated associations cannot be grant recipients and therefore do not have standing in this action.

3. Plaintiffs fully incorporate Plaintiffs' Corrected Brief in Support of Their Motion for Summary Judgment and their Revised Statement of Uncontested Facts in Support of Plaintiffs' Motion for Summary Judgment into this Response.

4. The Defendants cannot claim that the denial of funding to the Plaintiffs in this case was legitimate content-discrimination under Finley because there is no evidence indicating that Council Members knew the content of the operational and project grant programing for which Plaintiffs sought funding. See Plaintiffs' Revised Statement of Facts in Support of Their Motion for Summary Judgment ("Pls. R. SUF"), ùù 46, 47.

5. The Finley majority observed: "If the NEA were to leverage its power to award subsidies . . . into a penalty on disfavored viewpoints, then we would confront a different case." 118 Sup. Ct. at 2178. The cases cited by the Court emphasize two factors as most important in determining when the denial of a government subsidy constitutes an unconstitutional "penalty on disfavored viewpoints." The first factor is the reason for the denial: if the reason involves the applicant's viewpoint and it is not closely linked to the purposes of the tax subsidy, it appears to be unconstitutional viewpoint discrimination. Compare Regan v. Taxation with Representation of Wash., 461 U.S. 540 (1983) (government may deny tax exemption because of applicant's legislative lobbying) with Speiser v. Randall, 357 U.S. 513, 519 (government may not deny tax exemption because of applicant's refusal to take an oath against advocacy of revolution); and Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221 (1987) (government may not deny sales tax exemption to general interest magazines because they do not focus exclusively on religion or sports). The second factor is whether the decision targets only one or a few organizations or is of more general application: if only one or a few organizations are targeted, then it appears to be unconstitutional viewpoint discrimination. See e.g. Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. at 237 (only a small number of general interest magazines existed and were targeted by the denial of a sales tax exemption) and Minneapolis Star and Tribute v. Minnesota Commissioner of Revenue, 460 U.S. 575, 591-592 (1983).

6. While the government can impose restrictions on the parameters of any limited public forum that it creates, it must then "respect the lawful boundaries it has itself set [and] may not exclude speech where its distinction is not 'reasonable in light of the purpose served by the forum.'" For this reason, viewpoint discrimination "is presumed unconstitutional when directed against speech otherwise within the forum's limitations." Rosenberger, 515 U.S. at 829-830. (citations omitted)

7. Of course, the most fundamental restriction is that the funding is for "arts" programing, and cannot, for instance, be awarded to an agency to use for a recreational or rehabilitative program, because such activity is outside the scope of activities defined by the purposes of the City's arts funding program. Pls. R.SUF, ùù 6, 7, 13. This limitation is similar to that in Rust, where the Court found that Title X was designed to encourage affirmative family planning, and both prenatal care and abortion counseling and referral were outside the scope of the program. 500 U.S. at 193.

8. The City Council did not review the applications of the Plaintiffs. The majority of the Council Members admitted to having never seen these applications, while the remainder thought it possible they had not seen the applications. Pls. R. SUF, ù 46. In fact, Council Members generally admitted to knowing nothing about the nature or quality of the programing of the Esperanza, other than what they had heard in public attacks on the Esperanza Center, and many had never even heard of the other two Plaintiffs. Id. at ù 47.

9. The Court cautioned, however, that even where a governmental message is to be conveyed, there are limits to the government's power to "speak through"outside agencies, defined by traditional areas of free expression:

[T]he existence of a Government "subsidy," in the form of Government-owned property, does not justify the restriction of speech in areas that have "been traditionally open to the public for expressive activity,"... or have been "expressly dedicated to speech activity."

Rust, 500 U.S. at 200 (citations omitted). Certainly artistic and cultural expression are traditional areas of free expression. Steadman v. Texas Rangers, 179 F.3d 360 (5th Cir. 1999).

10. The Court observed: "The NEA's mandate is to make aesthetic judgments, and the inherently content-based "excellence" threshold for NEA support sets it apart from the subsidy at issue in Rosenberger." 118 Sup. Ct. at 2171.

11. Contrary to the Defendants' suggestion, a scarcity of funds also would not justify a governmental decision to exclude applicants because of their viewpoints. (See Defs. Mot., at 2, 6, 14). The Court in Finley found no distinction in this regard with the funds at issue in Rosenberger. Finley, 118 S.Ct. at 2178. In turn, Rosenberger explains that even a shortage of funds would not justify viewpoint discrimination in programs not designed to convey a specific government message: The government's "argument that the scarcity of public money may justify otherwise impermissible viewpoint discrimination among private speakers is simply wrong." 515 U.S. at 820 (citation omitted).

12. In Rosenberger, for example, subsidies were available for "any group the majority of whose members are students, whose managing officers are full-time students, and that complies with certain procedural requirements. 515 U.S. at 823.

13. Plaintiffs do not agree that maximizing revenue for infrastructure needs was the "primary" motivating reason behind the defunding of the Plaintiffs. However, whether this was "primary" or not is not material, as Plaintiffs merely have to show that viewpoint was one substantially motivating factor, not that there were no other substantially motivating factors.

14. See, e.g., Bannwolf Depo. at 89, Garza Depo. at 58-59.

15. Plaintiffs agree with Defendants that the evidence establishes that the actual or ascribed social and political viewpoints of the Plaintiffs was a substantial motivating factor in the City Council's decisions not to approve arts funding for the Plaintiffs in 1997 and 1998. Plaintiffs also agree with Defendants that the evidence establishes that opposition to the Esperanza and to the viewpoints publically ascribed to the Esperanza was a motivating factor in the City Council's decisions. Plaintiffs provide reference to additional items of evidence in order to present a fuller version of these facts, not to suggest that they are contested. As discussed in Section 3, infra, Plaintiffs do not agree that the evidence establishes that the Plaintiffs participated in a demonstration or in other behavior that was offensive to the City Council nor that the evidence establishes that such alleged behavior was a motivating factor in the City Council's decisions not to approve arts funding for the Plaintiffs.

16. The fourth reason asserted by the Defendants -- the desire of certain Council Members to reach consensus -- does not explain why they chose the Esperanza as the "vehicle" for this consensus. Def.Br. at 5, ù 10 . In order for consensus to have depended upon a defunding of the Esperanza, at least some -- and probably a majority -- of Council Members had to have demanded it. As such, it is only logical to conclude that these Council Members were motivated by reasons other than consensus.

17. Peak explained his vote to the media, and confirmed at his deposition the truth of these explanations. Peak Depo. at 108-109. His motivation included the Esperanza's public expression of "social" issues through its arts programming. Peak Depo. at 128-129.

18. Peak had heard that the Esperanza promoted its agenda through its arts programming. Peak Depo. at 57 ("I'm familiar with their agenda that is often connected ... with arts"); 52 (admitting that gay and lesbian controversy he had heard of related to the content of their art programming); 59 (discussing Esperanza's controversial "displays,"such as of photographs or paintings).

19. See Webster Depo. at 42, 44, 45, 46, 122-23, 134; Peak Depo. at 51-53, 96-97, 129-130; Salas Depo. at 85-88; Garza Depo. at 96; Bannwolf Depo. at 43, 55-56, 95-96; Vasquez Depo. at 71; Flores Depo. at 63-64; Guerrero Depo. at 48-50; Menendez Depo. at 61-62, 97; Prado Depo. at 39.

20. Although Salas testified that the did not respond to his constituents' views about the Esperanza, he nevertheless shared these views: he opposed funding the Lesbian and Gay Film Festival because he found the brochure advertising it personally offensive. Salas Depo. at 97.

21. In addition, the demonstration and comments described by the Council Members constitute a classic type of speech which is protected by the First Amendment. See generally, Shamloo v.Mississippi State Bd. of Trustees of Insts. of Higher Learning, 620 F.2d 516, 521 (5^th Cir. 1980) ("a demonstration is a method of expression often entitled to First Amendment protection," citing Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969)).

22. See also Sánchez Decl. at ù68 (recounting that Council Member Bannwolf told her that he could support the Alamo City Men's Chorale because "those boys just stood up there and sang").

23. This consensus, the Defendant implies, was reachable only by accommodating the objections of Council Members and constituents to the Esperanza. The evidence shows that those objections were rooted in invidious biases. Accommodating those biases cannot be a legitimate public end under the Equal Protection Clause. City of Cleburne v. Cleburne Living Ctr., 443 U.S. 432 (1985). Thus, the "desire to reach consensus" is not a neutral rationale at all, but instead a smokescreen for giving effect to improper purposes.

24. The legislators merely say in their affidavits that the lawsuit did not affect their support for the Adopted Budget. But the Council knew that the Esperanza had already been cut by CAB because of the lawsuit. They were content to let the CAB's decision stand, even after the City Attorney told them that the lawsuit should not be the sole reason for refusing funding. Their claim of neutrality, then, only reinforces the impact of the decision at the CAB level to implement the City's unlawful policy of retaliation.