State must allow KKK to participate in highway program

St. Louis Daily Record & St. Louis Countian, Jun 5, 2004 by Erin Suess

The third time is not the charm for the Missouri Highway and Transportation Commission's attempt to bar the Ku Klux Klan from its Adopt-A-Highway program, which the 8th U.S. Circuit Court of Appeals struck down on Thursday, calling the state's latest argument wholly disingenuous.

Each time the Missouri Highway and Transportation Commission sought to stop the Knights of the Ku Klux Klan Realm of Missouri from adopting a stretch of road because of its discriminatory practices, the courts ruled the commission's denial violated the Klan's constitutional rights; this time the results were no different.

After the 8th Circuit upheld the U.S. District Court for the Eastern District of Missouri's finding that the commission's policy violated the Klan's constitutional rights in the 2000 case, Cuffley vs. Mickes (Cuffley II), the commission amended the wording of its Adopt-A-Highway regulations.

The Klan reapplied for an adoption, and the commission again denied its request on the grounds that courts have taken judicial notice of a history of violence by the Knights of the Ku Klux Klan.

The District Court found the commission collaterally estopped from barring the Klan from the cleanup program on the basis of discriminatory membership, even though the Klan group the commission sought to ban, Unit 188, is separate from another Potosi KKK group that brought the original suit. The Court of Appeals deferred to the District Court's conclusion.

We agree with the district court that the State is presently attempting to re-litigate the same issue, wrote Judge Morris Sheppard Arnold, which it had a full and fair opportunity to litigate in Cuffley II.

The commission pointed to the changed language in its regulations as the key differentiating factor separating the case at hand from Cuffley II. The original language required that participating groups not discriminate on the basis of race, religion, color, national origin or disability, whereas the altered language accepts groups that do not deny membership on the basis of race, color, or national origin.

The 8th Circuit dismissed the argument, reasoning that even if the language differed, the intent to inhibit the Klan's freedom of association remained, leaving the appeals court little choice but to apply the ruling handed down in Cuffley II.

The State's newfound willingness to allow highway adopters to discriminate based on disability and religion does nothing to cure this infringement upon applicants' associational rights, wrote Arnold.

The commission also cited in support of its position Section 10- 14.030(2), which holds that participation is reserved for groups for whom state or federal courts have not taken judicial notice of a history of violence. The appellate court, however, deemed the regulation's language a smokescreen to justify excluding Unit 188 because of its controversial political views.

The appeals court backed this assertion by noting neither the applicants nor Unit 188 as a whole has a record of violence. It chided the commission for exerting no effort to link violence associated with other Klan groups to the applying group, citing the commission's own admission it had little knowledge of the KKK organizational structure.

An organization's choice of name expresses a distinct message to the community about its character and views, wrote Arnold, and the type of `judicial notice check' that the State has purportedly applied here has denied Unit 188 access to the AAH program based solely on its name, without regard to whether judicial notice has ever been taken of Unit 188 itself or the Arkansas-based corporation it is affiliated with having a history of violence.

Additionally, the 8th Circuit found the regulation itself unconstitutional, positing the incredible breadth of the ban against those with a history of violence could exclude not only murderers but also jaywalkers, athletic teams, union members and the Democrat and Republican parties. Even the Church of Jesus Christ of Latter-day Saints, which committed the Mountain Meadows Massacre, could be excluded, wrote the appeals court.

Noting that the AAH program `would soon have few adopters' were the State to enforce the regulation with any regularity, and that it had in fact not been enforced with any regularity, we concluded that it had been employed `to target only the Klan and its views,' wrote Arnold, citing Cuffley II. The Court of Appeals took note that the commission has accepted every application received but the Klans'.

The commission switched tracks, arguing that discrimination is allowed in cases involving government speech, such as the signs erected for the AAH program. It cited in support Knights of the Ku Klux Klan, Realm of Mo., vs. Curators of the Univ. of Mo., in which the 8th Circuit held that a publicly owned radio station was not obligated to accept a Klan group's application to underwrite a radio program.

The Court of Appeals disagreed, finding the signs counted as an element of communication protected by the First Amendment. It also found the commission's argument that the signs constituted governmental speech unpersuasive.