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COMITE PRO-CELEBRACION DEL CENTENARIO DEL NATALICI

September 2, 1994

COMITE PRO-CELEBRACION DEL CENTENARIO DEL NATALICIO DEL DR. PEDRO ALBIZU CAMPOS, ANTONIO BELTRAN, MIRTA RAMIREZ DANIEL RAMOS, JOSE RODRIGUEZ YOLANDA MENDEZ, and REVEREND DOCTOR JORGE MORALES, Plaintiffs,
v.
FORREST CLAYPOOL, General Superintendent of the Chicago Park District; and Chicago Park District Commissioners JOHN ROGERS, JR., JOSEPH G. PHELPS, WILLIAM BARTHOLOMAY, GEORGE VEST, JR., and MONA CASTILLO, Defendants.


Williams


The opinion of the court was delivered by: ANN CLAIRE WILLIAMS

El Comite Pro-Celebracion Del Centenario Del Dr. Pedro Albizu Campos ("El Comite") and its members have brought this suit against the Commissioners of the Chicago Park District ("Board") in their individual and official capacities. *fn1" The plaintiffs seek relief *fn2" under 42 U.S.C. §§ 1983 and 1988, alleging that the Board violated the First Amendment and the Equal Protection Clause of the Fourteenth Amendment when it refused to grant El Comite permission to erect a statue of Dr. Pedro Albizu Campos in Humboldt Park. The defendants have moved to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons stated below, the Board's motion to dismiss is granted in part and denied in part.

 Background

 For purposes of this motion, the following factual allegations must be accepted as true. El Comite is a committee established to celebrate the centennial of the birth of Dr. Pedro Albizu Campos, and is comprised largely of Puerto Rican residents of the City of Chicago. (Compl. P 1.) Dr. Campos was a Puerto Rican man who lead the Nationalist Party, a political group that advocated Puerto Rican independence. (Id. PP 4, 27.) He has been acknowledged and praised by many Latin Americans for his contributions to political and intellectual thought. (See id.) According to the plaintiffs, Dr. Campos is "one of the most significant and internationally acclaimed Puerto Rican political figures of the 20th Century." (Id.)

 In August of 1992, El Comite started making plans to erect a six-foot tall statue of Dr. Campos in Humboldt Park, which is located in a predominantly Puerto Rican neighborhood. (Id. PP 6, 8.) In order to do so, the plaintiffs had to obtain permission from the Board. (See id. P 7.) The Park District has established written guidelines for determining which statues and monuments it will accept. (Id. at Appendix.) The Board has delegated the responsibility for screening public donations to the Public Art Advisory Committee ("Advisory Committee"). (Id.) Apparently, if the Advisory Committee decides to accept a statue, Board approval is "a mere formality." (Id.)

 On November 13, 1992, El Comite presented their plan to the Advisory Committee. (Id. P 8.) As part of their proposal, plaintiffs agreed to pay the expenses of maintaining the statue. (Id. P 18.) The Advisory Committee approved the concept and artistic merit of the statue, and agreed to recommend acceptance if the statue was cast in bronze. (Id. PP 9-11.) Because plaintiffs believed that approval by the Advisory Committee was tantamount to approval by the Board, El Comite raised $ 35,000 and proceeded to have the statue cast. (Id. P 10.)

 On or about July 2, 1993, former Park District Superintendent, Robert Penn, signed the recommendation for approval of the statue. (Id. P 12.) However, the proposal was not passed on for several meetings, until eventually it was decided that the Board should hear speakers for and against erecting the statue. (Id. PP 13-15.) On or about July 27, 1993, the new Superintendent, Forrest Claypool, reportedly said that he opposed the plan because he disagreed with Dr. Campos's political beliefs and actions. (Id. P 16.) On August 10, 1993, the Board officially refused to accept the statue. (Id. P 19.)

 Motion to Dismiss

 "The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to decide the merits." Triad Assocs. Inc. v. Chicago Housing Auth., 892 F.2d 583, 586 (7th Cir. 1989). Therefore, a court should not grant a motion to dismiss unless the plaintiff is not entitled to relief under any set of facts that could be proved consistent with the allegations. Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984). In deciding a motion to dismiss, the court assumes that the alleged facts are true, and draws every reasonable inference in the plaintiffs' favor. Bowman v. Franklin, 980 F.2d 1104, 1107 (7th Cir. 1992), cert. denied, 124 L. Ed. 2d 639, 113 S. Ct. 2417 (1993).

 Analysis

 I. FIRST AMENDMENT CLAIM

 Under the First Amendment, applied to the states through the Fourteenth Amendment, the states shall make no law abridging freedom of speech. In a First Amendment case involving an alleged abridgement of free speech, the court conducts a three-part inquiry: (1) it decides if the proposed speech is protected under the Constitution; (2) it determines the nature of the forum, because the extent to which the state can limit speech varies depending upon whether the forum is public or non-public; and (3) it evaluates whether the state's proffered justifications for restricting speech are sufficient to satisfy the standards ...


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