February 7, 2001

Larry Black, Director
Columbus Metropolitan Library
96 South Grant Ave.
Columbus, Ohio 43225

Re: Library dress rules and access to Library facilities

Dear Mr. Black:

This letter is in response to your request for advice
concerning the propriety of the Library's prohibition of
patrons' entering the library without shoes or other footwear.

You have sent me correspondence from Robert Neinast, an
individual who contends that the Library may not, consistent
with the First Amendment to the United States Constitution,
promulgate a policy requiring that patrons wear shoes when
entering the Library.  Mr. Neinast's correspondence is an
extended analysis of a Federal Third Circuit Court of Appeals
Decision, Kreimer v. Bureau of Police of Morristown (1992),
958 F.2d 1242.  The analysis concludes, on the basis of the
holding in Kreimer that the Library may not require shoes as
a condition of access to Library facilities.

I have analyzed Kreimer and am unable to reach the same conclusion.
At page 1263 of the that decision, the court states:

    In addition to finding the rules valid under
    the reasonableness test we are applying, we disagree
    with the district court's statement that, under Tinker
    v. Des Moines Independent Community School District,
    393 U.S. 503, 89 S.Ct. 733, 21 L. Ed. 2d 731, and
    Grayned v. Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33
    L. Ed. 2d 222 (1972), the Library may only enact time,
    place and manner restrictions on activity that "actually
    and materially interferes with the peaceful and
    orderly management of the public space." [Footnote 1]
    765 F. Supp. at 188. (Emphasis added)

    Finally, we reiterate that the Library is a limited
    designated public forum.  The Library need only permit
    use of its facilities which is consistent with
    the intent of the government when opening this
    forum to the public.  Even within the scope of these
    consistent uses, it seems obvious that the Library
    may regulate conduct protected under the First
    Amendment which does not actually disrupt the Library.
    For example, we do not doubt that a Library may
    limit the number of books which a patron may borrow
    from it at any time, even though no request has been
    made by another patron for the book which the patron
    at his or her borrowing limit desires to withdraw.
    Similarly we do not doubt that the Library may limit
    the length of time during which a book may be borrowed.
    Indeed, the district court itself implicitly acknowledged
    this point when it modified its order so that it did
    not invalidate the rule requiring the wearing of shoes,
    since it can hardly be imagined that a person simply by
    being barefoot would disrupt the Library. (Emphasis added)

The quoted paragraphs make it clear that the Library may enact
such reasonable regulations as enable it to function properly,
including regulations of conduct that does not actually disrupt
library functions.  However, Kreinier specifically approves a rule
requiring the wearing of shoes.  [Footnote 2]

In addition, the Kreimer court noted that the regulations in
question did not permanently bar rule-breakers from using the
library, but only barred them while they were violating the
rule.  In Kreimer the plaintiff controlled his ability to enter
the library by taking a bath.  In your case, Mr. Neinast is not
permanently barred from the Library, but only when he attempts
to enter without wearing shoes.

Based upon the above discussion, it is my advice, in accordance
with the Kreimer [Footnote 3] decision, that the Library may
implement reasonable rules for the operation of the Library or
conduct of Library business, including a requirement that patrons
wear shoes while in the library.

                                  Very truly yours,

                                  Jeffrey L. Glasgow
                                  First Assistant, Civil


1. This statement assumes, of course, that a limited public forum
has the authority to restrict activities that are actually
disruptive to the operation of the Library.  Kreimer extended
this authority to reasonable rules that were not aimed at
disruptive acts, but were still within reasonable rules of
Library operation.

2. I note that Mr. Neinast quotes the same language from Kreimer
that I have set forth in this letter, but reaches the opposite
conclusion. I will not discuss his analysis other than to observe
that the approval of the policy requiring that shoes be worn
was a specific example of the appellate court's general approval of
reasonable library regulations, even when they regulate
non-disruptive behavior.  I would also note that the validity
of the footwear requirement had been approved by the District Court,
despite the disapproval of other practices that led to the appeal
decided in Kreimer.  The appellate court assumed the validity of the

3. I have performed a Lexis search for other cases bearing upon this
question. Kreimer appears to be the only case directly applicable
to this fact situation.  I believe that its logic would be equally
applicable if a legal challenge to Library policy was filed in
the Federal courts of this Circuit.