DEFENDANTS' REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM CONTRA PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT


I. INTRODUCTION

Plaintiff's Motion for Summary Judgment (combined with his Memorandum Contra Summary Judgment), misconstrues the legal principles applicable to this case. Plaintiff has asked this Court to create from whole cloth a new constitutional right: the right to walk barefoot in public libraries. No such constitutional right exists, however, under any of the doctrines Plaintiff invokes.

The act of walking barefoot is conduct, not speech. Requiring Library patrons to wear shoes therefore does not infringe the right of expression under the First Amendment. Nor does the shoe requirement impermissibly burden Plaintiff's claimed right to "receive speech" under the First Amendment. The right to receive speech is simply a means of protecting the constitutionally-guaranteed interest in free expression, an interest which is not threatened by a restriction on walking barefoot in the Library. Even if a First Amendment right were implicated here, Plaintiff's claim would nonetheless fail because the shoe requirement is a reasonable time, place, and manner restriction.

Plaintiff's objection to wearing shoes is entitled to no greater deference when he characterizes it as a substantive due process right to "freedom of personal appearance." The Library's limited restriction on Plaintiff's personal appearance is evaluated under the rational basis standard. Because the shoe requirement is rationally related to legitimate government interests, it clearly meets that standard and Plaintiff's substantive due process claim must fail as a matter of law.

Plaintiff's equal protection challenge is not cognizable at all, because the challenged restriction does not purport to distinguish among different groups of Library patrons but applies equally to all of them. Even if an equal protection analysis were applicable, however, the rational basis standard would again require that the shoe requirement be upheld as a matter of law.

Plaintiff's procedural due process claim is equally unavailing because the alleged procedural defects implicate only state law, not the federal Constitution. Finally, the individual Defendants are without question entitled to qualified immunity from Plaintiff's claims for damages.

None of Plaintiff's claims supports the creation of a new constitutional right to walk barefoot in a public library. Plaintiff's claims therefore fail as a matter of law, and the Defendants are entitled to summary judgment.

II. LAW AND ARGUMENT

A. THE REQUIREMENT THAT LIBRARY PATRONS WEAR SHOES DOES NOT INFRINGE ANY RIGHT OF PLAINTIFF UNDER THE FIRST AMENDMENT.

1. Walking Barefoot is Not "Speech" Protected By the First Amendment.

Plaintiff claims that he has a First Amendment right to go barefoot. He is wrong. The act of walking barefoot when it suits Plaintiff's fancy and the weather is not too cold (Plaintiff's Motion for Summary Judgment, Exhibit 1, ¶2) (hereafter, "Plaintiff's M. S.J.") is conduct unprotected by the First Amendment. It is axiomatic that "[i]t is possible to find some kernel of expression in almost every activity a person undertakes - for example, walking down the street or meeting one's friends at a shopping mall - but such a kernel is not sufficient to bring the activity within the protection of the First Amendment." Dallas v. Stanglin, 409 U.S. 19, 25 (1989).

To determine whether the act of going barefoot is entitled to First Amendment protection, a court must consider "the nature of [plaintiff's] activity, combined with the factual context and environment in which it was undertaken." Spence v. Washington, 418 U.S. 405, 409-10 (1974). Plaintiff must show both that he acted with "an intent to convey a particularized message," and that "in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it." Id. at 410-11. The first test is a subjective standard. The second is objective.

Plaintiff asserts that it is a common misconception that going barefoot is illegal and that he walks barefoot to show that walking barefoot it legal. (Plaintiff's M. S.J., Ex. 1, ¶4) To say that his barefoot walking conveys this "particularized message," however, is circular in the extreme: under Plaintiff's theory, every act that violates a government stricture would amount to a communication protected by the First Amendment.

Plaintiff's claimed "message" bears no resemblance to the specific political, religious, or ideological messages that courts have found sufficiently particularized to merit First Amendment protection. See Tinker v. Des Moines Indep. Sch. Dist. 393 U.S. 503, n.4 (1969) (wearing a black armband with a peace symbol to protest the Vietnam war); Texas v. Johnson, 491 U.S. 397, 399 (1989) (burning an American Flag during a demonstration protesting the policies of the Reagan administration at the Republican National Convention while chanting "red, white, and blue, we spit on you" was speech). Instead, the act of walking barefoot is more like other forms of conduct that have been found to lack constitutional stature. See Dallas v. Stanglin, 490 U.S. 19, 25 (1989) (individuals who meet for recreational dancing are not "tak[ing] positions on public questions," and thus are not engaged in particularized expression); Young v. New York City Transit Auth., 903 F.2d 146, 153 (2d Cir. 1990) (begging does not generally display a "particularized social or political message.")1 

Plaintiff's conduct of walking barefoot also fails to meet the second prong of the Spence test: the requirement that, given the surrounding circumstances, a "great likelihood" exists that his message would be understood by those who viewed it. Spence, supra, 418 U.S. at 410-411. Whether conduct is likely to meet the second prong of the Spence test is often dependent on the political or social context in which it occurs.

In Street v. New York, 394 U.S. 576 (1969), for instance, the Plaintiff burned an American flag at a political rally protesting the slaying of civil rights leader John Meredith. While burning the flag, the plaintiff shouted that "If they let that happen to Meredith, we don't need an American flag." Id. at syllabus. Because of its specific context - occurring as it did at a rally specifically protesting government inaction and accompanied as it was by contemporaneous pure speech - Court found that this conduct might have been understood by those viewing it.

In Spence v. Washington, 418 U.S. 405 (1974), the timing of the plaintiff's conduct (draping a flag with a peace symbol over his balcony) imbued it with symbolic meaning. The Court, in finding that this conduct reached the level of protected speech, noted: "In this case, appellant's activity was roughly simultaneous with . . . the Cambodian incursion and the Kent State tragedy. . ., issues of great public moment. . . . [I]t would have been difficult for the great majority of citizens to miss the drift of appellant's point at the time he made it." Id. at 410 (emphasis added).

In this case, there is no similar social or political context, and thus no basis to believe that the "great majority" of objective viewers would understand Plaintiff's purported message that going barefoot it legal. Id. at 411. Even if Plaintiff has a specific philosophy or message that he associates with going barefoot, doing so in the Library does not create a great likelihood that his message is understood. Rather, the likely message to an objective viewer is that Plaintiff has taken off his shoes to enhance his own comfort, or has forgotten his shoes. See Littlefield v. Forney Indep. Sch. Dist., 2001 U.S. App. LEXIS 20973, *55 (5th Cir. 2001) (school uniform, devoid of any logo, symbol, or other mark, "conveys at most the following message: that the wearer is a student.") (Appendix hereto, Tab B) (hereafter, "App."); Troster v. Penn. Dept. of Corrections, 65 F.3d 1086, 1091 (3d Cir. 1995) (wearing an American flag on one sleeve was not an act of expression "likely to be understood" as conveying any particular message); People v. Hollman, 68 N.Y.2d 202, 206 (1986) ("While there may be contexts in which a public display of nudity would reasonably be understood as a means of communicating an idea, it cannot be said that nude sunbathing on a beach is a form of expression likely to be understood by the viewer as an attempt to convey a particular point of view").2 

Plaintiff's contention that after-the-fact explanation of his particularized message converted his conduct into speech is contrary to law and logic. The plaintiffs in Young v. New York City Transit Auth. supra, challenging a city ordinance which prevented begging, made a similar argument, which the court properly rejected:

The plaintiffs also contend that [their conduct] sometimes occasion[s] questions from, and conversations with, passengers. We do not doubt that the proscribed activity may sometimes involve speech and upon occasion even give rise to the exchange of speech. We do not accept, however, that this incidental speech is one and the same as the conduct being regulated. Actual speech which may arise as an incident to conduct is not at issue here. The regulation at stake does not prevent any individual from speaking to passengers. Further, the First Amendment protects speech and not every act that may conceivably occasion engagement in conversation.

Id. at 154 (emphasis added). See also South Florida Free Beaches, Inc. v. Miami, 734 F.2d 608, 610 (11th Cir. 1984) (plaintiff's who advocated the benefits of nude sunbathing were not constitutionally entitled to engage in the practice; they could advocate their hobby through other means).

Thus it makes no difference that Plaintiff, in a separate communicative act, orally advocated the legality of barefootedness to the Library staff.3  The question is whether Plaintiff's conduct alone, given the surrounding circumstances, would convey his intended message to "a great majority of the population." See Spence supra, 418 U.S. at 410. It clearly would not.

Accordingly, because walking barefoot in a Library conveys no particularized message likely to be understood by an ordinary observer, Plaintiff's conduct of walking in the Library without shoes does not implicate First Amendment's protections.

2. The Requirement that Library Patrons Wear Shoes Does Not Infringe Any First Amendment Right of "Access to Speech."

In an attempt to subject the shoe requirement to a heightened standard of scrutiny, Plaintiff asserts that it violates his First Amendment right of "access to speech." As the sole authority in support of this argument, Plaintiff relies upon Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. 1992). For several reasons, Kreimer is inapplicable.

First of all Kreimer, as a Third Circuit case, is not binding on this Court. Second, Kreimer expands a "right of access" beyond the concept that the Supreme Court and other Circuits have articulated, creating an affirmative right to library access that has not been recognized elsewhere as inherent in the First Amendment. Third, even if the claimed right possessed the exact contours articulated by Kreimer, the Kreimer opinion itself makes clear that the Library regulation requiring shoes does not in any way violate Plaintiff's "right of access."

a. The "Right of Access to Speech" is Not at Stake in this Case

The "right to receive" information which Plaintiff invokes is not independent of the First Amendment guarantee of free expression but an essential corollary to it. The courts recognizing a right of access have viewed it as a source of standing for plaintiffs, enabling not only a would-be speaker but also his or her prospective audience to enforce the speaker's First Amendment right of expression. See, e.g. Johnson v. Stuart, 702 F.2d 193, 196 (9th Cir. 1983) (students challenging a ban on certain textbooks had standing, because the textbook authors were "willing speakers"); Davis v. East Baton Rouge Parish Sch. Bd., 78 F.3d 920, 927 (5th Cir. 1996) (news agency had standing to pursue a claim that it was entitled to receive speech); Dow Jones & Co., Inc. v. Simon, 842 F.2d 603, 608 (2d Cir. 1988) ("It is that right to receive speech that affords standing to the press to maintain this action."); Pittman v. Cole, 2001 U.S. App. LEXIS 21376, n.12 (11th Cir. Oct. 3, 2001) ("[A]n injury in fact to the [plaintiff's] right to receive speech from a will speaker suffices to confer standing.") (App. Tab C).

Kleindienst v. Mandel, 408 U.S. 753 (1972) illustrates the way in which the right to receive has functioned. In Kleindienst, the Supreme Court considered a claim by university professors and students who wished to interview, debate, and speak with a lecturer from Belgium. Although the lecturer had been invited to attend a colloquium, he was denied a visa to enter the United States. The Court found that the "the First Amendment confers upon the appellee professors, [the right] to hear, speak and debate with Mandel in person . . ." The Court, recognizing that Mandel was a willing speaker, held that his prospective listeners had standing to challenge the government act that prevented him from speaking. As with the cases above, though, the Supreme Court did not articulate an affirmative right to receive speech in a particular public setting; it merely allowed someone besides the speaker to enforce the right of expression that the First Amendment protects.

Similarly, in Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976), the Court considered a complete ban on advertising reflecting the price of prescription drugs. In finding that the plaintiffs, a class of consumers who wished to receive the advertising, could bring suit for violation of their right to receive information, the Court wrote that "[i]f there is a right to advertise, there is a reciprocal right to receive the advertising, and it may be asserted by appellees." Q> Id. at 757. Further, the Court set forth what is the key principle in this area: "Freedom of speech presupposes a willing speaker. But where a speaker exists, as is the case here, the protection afforded is to the communication, to its source and to its recipients both." Q> Id. at 756 (emphasis added). Like Kleindienst, Virginia State Board did not recognize an affirmative right to receive the proffered information through a particular public venue; it merely held that the government could not censor the information, and that potential recipients had standing to challenge the threatened censorship.

With a few exceptions inapplicable here,4  other cases considering the right to receive have done so in a similar light: as a corollary to the right of a speaker to communicate. See Thomas v. Collins, 323 U.S. 516, 534 (1945) (a labor organizer's right to speak and the rights of workers "to hear what he had to say" were abridged by a state law requiring organizers to register before soliciting union membership); Procunier v. Martinez, 416 U.S. 396, 408-409 (1974) (finding no need to examine First Amendment rights of prison inmates regarding censorship of their mail, because such censorship equally infringed the rights of addressees).

Even the cases on which Kreimer relied focused on forbidding government censorship of speech, not on guaranteeing unbridled access to public institutions. In Lamont v. Postmaster General, 381 U.S. 301, 308 (1965), for instance, the Supreme Court found the "right to receive" infringed by a law that required addressees of unsealed foreign mail containing communist propaganda to sign a card in order to receive the mail. The Court wrote that "[t]he dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them . . . [for] it would be a barren marketplace of ideas that had only sellers and no buyers." Thus, in Lamont as in Virginia Board and Kleindienst, the right of receipt was recognized simply as a means of enforcing the right that the First Amendment was designed to protect - the right to communicate freely.5 

As authority for an independent right to receive communications, Kreimer relied heavily on the three-Justice plurality opinion in Board of Educ. v. Pico, 457 U.S. 853 (1982), a case that involved censorship through the removal of specific books from a school library. The plurality opinion offered two different justifications for the "right to receive speech": it reasoned first, as in other cases, that the "right to receive" is essential to give effect to the speaker's First Amendment right to speak; and second, that the "right to receive" information, in the specific context is the predicate to the receiver's own right of speech, press, and political freedom. Id. at 866-867. This second rationale is the principal support for Kreimer's finding of an independent constitutional right of access to information.

The cited rationale has little precedential value for this case, however. Not only did the Pico opinion represent the view of only three members of the Supreme Court, but it struck down an attempt to ban books - a classic attempt to restrict the communication of ideas protected by the First Amendment. Id. at 863. ("[T]he issue before us in this case is a narrow one, both substantively and procedurally . . . First, does the First Amendment impose any limitations upon the discretion of petitioners to remove library books from the Island Trees High School and Junior High School? Second, if so, do the affidavits and other evidentiary materials before the District Court, construed most favorable to respondents, raise a genuine issue of fact whether petitioners might have exceeded those limitations"). Its holding was therefore consistent with all the other cases that have recognized the First Amendment's core purpose as a guarantee of free expression.

The Third Circuit in Kreimer thus went well beyond the holding and the rationale of existing precedent, when it purported to find an independently actionable "right of access" to public libraries guaranteed by the First Amendment. Restrictions on the conduct of library patrons simply do not pose any threat to the right of expression with which the First Amendment is concerned.

Even if Kreimer were both well-supported and binding on this Court, however, it still would not support Plaintiff's claims in this case. The requirement that Columbus Library patrons wear shoes is valid even under the standards applied by Kreimer.

b. Even Assuming That the Kreimer Articulation of the "Right to Receive" Speech Applies, the Library Regulation is Valid

As the Kreimer court itself noted, the so-called right of access is not absolute. See Kreimer, supra, 958 F.2d at 1265. As a limited public forum, a library need only afford access that is consistent with the intent of the government when opening the forum to the public. Id. In that context, the Kreimer court specifically noted that a Library may "regulate conduct protected under the First Amendment which does not actually disrupt the Library." Id. The court went on to observe that

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. Q>

Id. (emphasis added).

To the extent that requiring Library users to wear shoes limits a constitutional right of access to information, the limitation is nonetheless lawful as a reasonable time, place and manner restriction. Regulations governing the time, place, and manner of protected speech, like the shoe requirement, are subject to "intermediate scrutiny": they should be upheld "so long as they are content neutral, closely tailored to serve a significant governmental interest, and allow for reasonable alternative channels of communication." See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984); Kreimer, supra, 958 F.2d at 1255. In this case, the Library's policy manifestly meets that test.

Requiring library patrons to wear shoes serves two substantial purposes, each sufficient to justify the requirement. First, it serves to safeguard the health and safety of library patrons from hazards unavoidable in a building which, as Plaintiff himself emphasizes, is open to all. Second, it serves to protect the fiscal integrity of the Library from the potential expense of defending lawsuits and/or paying judgments to Library users who might have avoided injury by wearing shoes. Defendant's M. S.J., Ex. A, ¶ 3. Both interests are substantial ones. The law is well-settled that health and safety concerns are an "important or significant" governmental interest. See Posadas de Puerto Rico Ass'n v. Tourism Co. of Puerto Rico, 478 U.S. 328, 341 (1990) ("[W]e have no difficulty in concluding that . . . interests in health, safety, and welfare . . . of citizens constitutes a 'substantial governmental interest.'"); United States v. Washington, 879 F.2d 1400, 1401 (6th Cir. 1989) (same); Mermaids, Inc. v. Currituck Cty. Bd. of Comm'rs., 19 F.Supp. 2d 493, 497 (E.D.N.C. 1998) ("The ordinance at issue in this case also furthers a 'substantial governmental interest[:] promoting the health, safety, morals, and general welfare of the citizenry.'").

Similarly, the interest of the Library in preserving private and public financial resources is also substantial. Droz v. Commissioner, 48 F.3d 1120, 1124 (9th Cir. 1995) (holding that the fiscal integrity of a government program is a compelling government interest sufficient to withstand the highest level of scrutiny); United States v. Grayson County State Bank, 656 F.2d 1070, 1074 (5th Cir. 1981) (holding that the governmental has a substantial interest in maintaining the integrity of its fiscal policies); City of Mayfield Heights v. Woodhawk Club Condo. Own., 2000 U.S. App. LEXIS 1835 (6th Cir. 2000) (citing Edwards v. Valdez, 789 F.2d 1477 (10th Cir. 1986), a case dealing with the fiscal integrity of a large government program, for the proposition that preserving private and public funds is a governmental interest of local government). (App. Tab D)

Moreover, the shoe requirement is designed to effectuate the interests in question. The Supreme Court has defined the "designed" or "narrowly tailored" requirement under this test as "a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served." Q> Board of Trustees v. Fox, 492 U.S. 469, 480 (1989). A regulation is not invalid merely because the reviewing court concludes that the government could serve the interest by some less speech-restrictive alternative. See Ward v. Rock Against Racism, 491 U.S. 781, 796-99 (1989). See Kreimer, supra, 958 F.2d at 1264. It is valid so long as the governmental interest would be less effectively achieved without the policy. See Ward, supra, 491 U.S. at 799; United States v. Albertini, 472 U.S. 675, 689 (1985) (the requirement is satisfied "so long as the neutral regulation promotes a substantial government interest that would be achieved less effectively absent the regulation."). The validity of government regulations "does not turn on the judge's agreement with the responsible decision maker concerning the most appropriate method for promoting significant government interests or the degree to which those interests should be promoted." Ward, supra, 491 U.S. at 799.

Despite Plaintiff's unsupported assertions to the contrary, an administrator is not required to demonstrate that a regulation is designed to effectuate its end by producing extensive studies regarding the object of a time, place, or manner regulation before promulgation of a rule. Indeed, administrators may rely on "their own wisdom and common sense" Q> in ascertaining whether a regulation will serve substantial or important governmental interests" See Sammy's Ltd. v. City of Mobile, 140 F.3d 993, 997 (11th Cir. 1998); Suburban Lodges of America v. City of Columbus Graphics Comm'n, 2000 Ohio App. LEXIS 4701, *18 (Franklin Cty. 2000) ("[W]e will not second-guess the city's common-sense conclusion . . . Evidentiary proof in this regard is not constitutionally required." Q>) (App. Tab E).6 

Both of the Library's substantial interests are more effectively advanced with the existence of the policy than they would be without. There is substantial documented evidence in the record to support the Library's contention that, although the Library staff is diligent in removing dangers from the Library's floors, there are at times significantly dangerous conditions in the Library's corridors and bathrooms justifying the policy (App. Tab A, #8). The Library's administrators, employing their "own wisdom and common sense," have decided that this evidence provides a basis for the rule that shoes are required. (Plaintiff's M. S.J., Ex. 1, ¶5).

It is no great leap of logic to believe that individuals wearing shoes are more protected from these hazards than are those without; Plaintiff's requirement that the Library conduct and extensive study of this phenomena is unwieldy and contrary to both logic and law. Similarly, it is self-evident that a reduction of overall exposure to the biohazards reflected in the submitted documents will work a reduction in the number of possible tort claims, with their attendant potential for liability and litigation costs. Given the minimal impact on possible free speech and access to the Library (even for Plaintiff, who concedes that he does not go barefoot when "required for safety purposes" or "when a business or institution would not let me in barefoot. . .". (Plaintiff's M. S.J., Exhibit A, ¶2)), Plaintiff's argument that the policy does not effectuate the Library's substantial interest in maintaining the health and safety of patrons is unavailing.

Finally, the policy is a minimal intrusion on personal freedom which leaves open ample alternative channels for protected communication. Kreimer v. Bureau of Police 958 F.2d 1242 (3d Cir. 1992). Plaintiff is free to communicate the legality of wearing shoes by other means such as verbal discussion - an option he admittedly exercised in this case. The Library simply requires that, if he wishes to communicate in the Library, he do so while wearing shoes and respecting other reasonable standards of library conduct. As the Kreimer court itself noted:

[t]his rule leaves open alternative channels for communication in the sense that, so long as a patron complies with the rules, he or she may use the Library's facilities. Q>)

Id. at 1964. See also South Florida Free Beaches, Inc. v. Miami, 734 F.2d 608, 610 (11th Cir. 1984) (plaintiffs remained free to advocate the benefits of nude sunbathing, albeit while fully dressed).

Accordingly, even if an affirmative right of access to a public library existed under this Circuit's precedent, the shoe requirement would be valid as a reasonable restriction on the time, place and manner of speech. Defendants are therefore entitled to summary judgment on Plaintiff's First Amendment claims.

B. REQUIRING LIBRARY PATRONS TO WEAR SHOES DOES NOT INFRINGE A SUBSTANTATIVE DUE PROCESS "RIGHT TO FREEDOM OF APPEARANCE."

1. Government Actions Regulating Personal Appearance Are Subject to Rational Basis Review

Plaintiff also argues that he has a substantive due process right to freedom of personal appearance. This claim must also fail, for two reasons. This right is explicitly not as important as other substantive rights stemming from the Fourteenth Amendment's Due Process clause, such as rights related to procreation, marriage, and family life. As a result, even if such a right is recognized, any regulation limiting it must be evaluated under the rational basis test, a test the Library's shoe requirement clearly meets.

First, as Plaintiff acknowledges, the Supreme Court has never recognized a constitutional right of personal appearance. At most, the Court assumed the existence of such a right before finding that it could not support relief in the case at issue. See Kelley v. Johnson, 425 U.S. 238, 244 (1976)7  ("[W]hether the citizenry at large has some sort of liberty interest within the Fourteenth Amendment in matters of personal appearance is a question on which this Court's cases offer little, if any guidance. We can, nevertheless, assume an affirmative answer for purposes of deciding this case, because we find that assumption insufficient to carry the day for respondent's claim" Q>).

Even if such a right existed under the Constitution, it is clearly not a fundamental right entitled to the strict scrutiny accorded rights of speech, religion and privacy. See Kelley, supra, 425 U.S. at 244 ("The 'liberty' interest claimed by respondent here, of course, is distinguishable from the interests protected by the Court in Roe V. Wade, Eisenstadt v. Baird, Stanley v. Illinois, Griswold v. Connecticu, and Meyer v. Nebraska. Each of those cases involved a substantial claim of infringement on the individual's freedom of choice with respect to certain basic matters of procreation, marriage, and family life." Q>) (citations omitted); Domico v. Rapides Parish Sch. Bd., 675 F.2d 100, n.1 (5th Cir. 1982) ("The plaintiffs cannot claim that the right to choose one's hairstyle is a fundamental right whose deprivation will draw stricter scrutiny from the courts. Fundamental rights have generally been limited to basic matters such as procreation and family life." Q>); Karr v. Schmidt, 460 F.2d 609, 615 (8th Cir. 1972) ("We think it plain that individual liberties may be ranked in a spectrum of importance. At one end of the spectrum are the great liberties such as speech, religion, and association specifically guaranteed in the Bill of Rights. . . . At the other end of the spectrum are the lesser liberties that may be invaded by the state subject only to the same minimum test of rationality that applies to all state action[.] It is our firm belief that this asserted freedom does not rise to the level of fundamental significance which would warrant our recognition of such a substantive constitutional right." Q>). 8 

Thus, to the extent such a right exists, it is not "fundamental" in the sense that draws heightened scrutiny.

Because the supposed right at issue is not a fundamental one, regulations which abridge that right are subject only to rational basis review. Domico v. Rapides Parish Sch. Bd., 675 F.2d 100, n.1 (5th Cir. 1982); Karr v. Schmidt, 460 F.2d 609, 615 (5th Cir. 1972); Rathert v. Peotone, 903 F.2d 510, 516 (7th Cir. 1990) (Although "choice of appearance is an element of liberty[,]" the court must evaluate whether the government action "bear[s] a rational relationship to a legitimate public interest."); In re Alcala, 222 Cal. App. 3d 345, 367-68 (1990) ("In summary, we hold that personal expression through clothing choice implicates 'the more general contours of the substantive liberty interest protected by the Fourteenth Amendment' . . . We emphasize that we do not classify the nonspecific right to clothing choice with rights that the courts have found to be fundamental . . . No court has so held, and we decline to declare a rule that would require strict judicial scrutiny of every regulation of personal appearance").

Plaintiff's attempts to distinguish unfavorable cases as involving students, prisoners, immigrants and others who, he contends, should expect to be more pervasively regulated than "free adults" like himself. He fails to acknowledge, however, that even the cases on which he relies recognized the same central premise: the rational basis test applies to regulations implicating the right to freedom of personal appearance.9 

In short, recognition of the constitutional "right" of personal appearance has been severely limited. As important, most of the cases (including those from this Circuit) agree that to the extent there is such a right, it is not a fundamental right comparable to speech, religion or privacy. Thus, to the extent Plaintiff has a right of personal appearance to go barefoot, limitations on that "right" must be subjected to the rational basis test.10 

2. The Requirement that Library Patrons Wear Shoes Satisfies the Rational Basis Standard, Because it is Rationally Related to a Legitimate Government Interest

In order to avoid the requirement that he wear shoes while using the Library, Plaintiff must demonstrate that the policy is not rationally related to a legitimate government interest. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 83-85 (2000) ("When conducting rational basis review the court will not overturn . . . government action unless [it] is so unrelated to the achievement of any combination of legitimate purposes that the court can only conclude that the government's actions were irrational."); Peoples Rights Org. v. City of Columbus, 152 F.3d 522, 532 (6th Cir. 1998) ("The rational basis test requires the court to ensure that the government has employed rational means to further its legitimate interest").

Under the rational basis test, a regulation must be upheld as long as it furthers a legitimate state purpose.11  See Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 314 (1976). Indeed, the government need not even articulate the reasoning behind its decision at the moment the decision is made. See Hancock Industries v. Schaeffer, 811 F.2d 225, 238 (3d Cir. 1987) ("It is of course constitutionally irrelevant whether [the proposed reasoning] in fact underlay the legislative decision" Rather, the burden is upon the challenging party to negate any reasonably conceivable state of facts that could provide a rational basis. Barket, Levy & Fine v. St. Louis Thermal Energy Corp., 21 F.3d 237, 240 (8th Cir. 1994) ("Under rational basis review, [a court] accepts at face value contemporaneous declarations of the [governmental] purposes, or in the absence thereof, rationales constructed after the fact, unless an examination of the circumstances forces [it] to conclude that they could not have been a goal of the classification." Q>); Hancock Industries, supra, 811 F.2d at 237-38 ("[T]he rational basis test [does not] involve[] the court in a determination of historic fact and, accordingly, the court has no occasion to inquire into the subjective motives of the decisionmakers. . . . [W]here there are plausible reasons for the legislative action, the court's inquiry is at an end.").

Indeed, the Court may construct its own rationale. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 (1982) (court may consider all evidence "presented to [the legislature], and . . . of which [the Court] may take judicial notice"); Borman's Inc. v. Michigan Property & Casualty Guaranty Ass'n, 925 F.2d 160 (6th Cir. 1991) (same).12 

The Defendants here have clearly articulated two legitimate interests: protecting the health and safety of Library patrons, and protecting the fiscal integrity of the Library. See Defendant's M. S.J., Ex. A, ¶5. There can be no argument that the health and safety of Library patrons while on the Library's grounds is not a legitimate interest. See Curto v. Harper Woods, 954 F.2d 1237 (6th Cir. 1992) ("[T]he safety and general welfare of . . . citizens" Q> is a legitimate government interest); Oladipupo v. Austin, 104 F.Supp. 2d 626 (W.D. La. 2000) (preventing foot injuries is a legitimate governmental interest).13 

The Library's concomitant legitimate interest in avoiding tort liability to barefoot individuals injured on its premises, and thus shepherding its municipal resources, is also recognized. See City of Mayfield Heights v. Woodhawk Club Condo. Owners Assn., 2000 U.S. App. LEXIS 1835 (6th Cir. 2000) ("The legitimate government interest of the City was the promotion of efficiency . . . to preserve scarce municipal resources." Q>) Equality Foundation v. City of Cincinnati, 128 F.3d 289, 301 (6th Cir. 1997) (The government has "valid interests . . . in conserving public and private financial resources").14 

A regulation requiring shoes is rationally related to both of these legitimate ends. While the Library is not, as Plaintiff suggests, so regularly negligent that foot injuries occur "all the time," it is true that the Library does not and cannot assume the burden of hunting down "every little danger." The Library's facilities are heavily-trafficked public buildings, and public buildings sometimes contain hazards which cannot be avoided. Indeed, despite the Library's efforts, events do occur which sometimes makes it floors unsafe for those who would walk barefoot. (App. Tab. A, #8). The Library's corridors and bathrooms have at times held a number of dangers, including broken glass, blood, semen, and human waste, any of which might harm someone walking barefoot. Id. Although Plaintiff would not have chosen this particular method of protecting the public, he cannot seriously contend that the shoe requirement is irrational, as required.15 

Accordingly, the Defendants are entitled to summary judgment because the Library regulation is rationally related to a legitimate governmental interest. Plaintiff's claim must fail as a matter of law.

C. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF'S "PROCEDURAL DUE PROCESS" CLAIM.

The source of Plaintiff's procedural attack on the shoe requirement was heretofore unexplained. It is now apparent that Plaintiff seeks relief on the theory that the Library Board of Trustees' delegation of authority to Mr. Black violated Plaintiff's claimed right to "procedural due process." This theory is unsupported by law.

No procedural due process right exists in the generalized rulemaking process of political subdivisions or agencies (the entities which the Library's Board of Trustees most closely resembles). See United States v. Florida East Coast Ry. Co., 410 U.S. 224, 244-46 (1973) (contrasting due process rights in individual administrative adjudication with the absence of such rights in administrative rulemaking Q>); Reichalt v. Gates, 1992 U.S. App. LEXIS 14182 *7 (9th Cir. June 11, 1992) ("Moreover, a plaintiff cannot base a due process claim on an administrative agency's improper adoption of a rule of general applicability" Q>) (App. Tab F). Because the shoe requirement is "of general applicability," the method of its promulgation is irrelevant to any procedural due process right possessed by Plaintiff.

As a result, Plaintiff's only procedural argument is that the Board exceeded its statutory powers under O.R.C. § 3375.40 (its authorizing statute). This is manifestly a question of state statutory interpretation. See In re Miller, 20 Ohio App. 3d 346, 347 (Franklin Cty. 1984) (scope of an Ohio administrative body's powers is a question of statutory interpretation); State ex rel. Cincinnati v. Ohio Civil Rights Comm'n., 2 Ohio App. 3d 287, 288 (Franklin Cty. 1981) (improper exercises of administrative power are the subject of state law determinations). The Board has interpreted O.R.C. § 3375.40 in a particular way - as allowing it to "make and publish rules" by directing its Executive Director to establish rules dealing with the day-to-day business of the Library. Plaintiff contends that this interpretation of the statue is in error.

This disagreement does not vest in Plaintiff any federal due process right in the procedure by which the shoe requirement was promulgated. United States v. Florida East Coast Ry. Co., 410 U.S. 224, 244-246 (1973). Plaintiff has cited no authority for such a right.16  Mere allegations of state law violations are not sufficient to state a claim under § 1983. See Baker v. McCollan, 443 U.S. 137, 146 (1979) ("[§ 1983] does not cover official conduct that allegedly violates state law."); Huron Valley Hosp. Inc. v. Pontiac, 887 F.2d 710, 714 (6th Cir. 1989) ("Section 1983 authorizes the courts to redress violations of 'rights, privileges, or immunities secured by the Constitution and [federal] laws' that occur under color of state law. The statute is thus limited to deprivations of federal statutory and constitutional rights. It does not cover official conduct that allegedly violates state law.").17  (emphasis added).

As a result, Plaintiff's procedural arguments must fail. His arguments are not based on a constitutional right, but upon state statute. As such, they fail to state a claim upon which relief can be granted under 42 U.S.C. § 1983 action.

D. THE DOCTRINE OF QUALIFIED IMMUNITY BARS ANY CLAIM FOR DAMAGES AGAINST DEFENDANTS BLACK AND JOHNSON

Mr. Black and Mr. Johnson are without question entitled to qualified immunity. Plaintiff has not articulated any "clearly established" federal constitutional or statutory right sufficient to put either Mr. Black or Mr. Johnson "on notice that [their] conduct would be clearly unlawful." Saucier v. Katz, 121 S. Ct. 2151, (2001); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). See also Anderson v. Creighton, 483 U.S. 635 (1987).

According to the Sixth Circuit:

[A] finding of a clearly established constitutional right must generally be supported by precedent from the Supreme Court or this Circuit, or in the alternative, by decisions from other circuits . . . . Although decisions of other courts can clearly establish the law, such decisions must both point unmistakably to the unconstitutionality of the conduct and be so clearly foreshadowed by applicable direct authority as to leave no doubt in the mind of a reasonable officer that his conduct was unconstitutional.

Mumford v. Zieba, 4 F.3d 429, 432-33 (6th Cir. 1993) (emphasis added).

This standard is objective: "[would] a hypothetical official, standing in the Defendant's shoes, . . . necessarily have understood that taking steps challenged by the Plaintiff would violate Plaintiff's clearly established constitutional or statutory rights[?]" Cullinan v. Abramson, 128 F.3d 301, 309 (6th Cir. 1997). Plaintiff's claims, as modified by his combined motion, cannot meet this burden:

Qualified immunity protects all public officers but those who are "plainly incompetent or . . . who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). Although Plaintiff offers several opinions regarding what he believes reasonable administrators might do, his contentions depend on an assumption that the Library's shoe requirement actually violated a "clearly-established" constitutional right. As the above discussions explain, however, Plaintiff has no "clearly established" constitutional right to go barefoot in the Library. Even if such a right could be found to exist under the circumstances of this case, it certainly was not "clearly established" when the Library enforced its policy against Plaintiff. Given the indeterminate nature of the right now claimed by Plaintiff, it is evident that Mr. Johnson and Mr. Black are qualifiedly immune from suit under Section 1983, and thus are untitled to judgment as a matter of law.19 

III. CONCLUSION

Plaintiff claims that he has a constitutional right to walk barefoot in a public library. His claim cannot support relief as a matter of law. Walking barefoot is conduct, not speech, and requiring library patrons to wear shoes does not improperly restrict their freedom to communicate under the First Amendment. The shoe requirement likewise does not impermissibly burden any right Plaintiff may have to receive information or to control his personal appearance. Even if such claimed rights are cognizable under the Constitution, the shoe requirement constitutes a minimal interference which is reasonable and lawful under the applicable standards of constitutional review. Plaintiff has failed to state any cognizable claim at all based on equal protection or procedural due process, and Defendants Black and Johnson are without question entitled to qualified immunity. Thus, for all the reasons outlined above and in their Memorandum in Support of Summary Judgment, Defendants respectfully request that summary judgment be granted in their favor and that Plaintiff's motion be denied.



  Respectfully submitted,
_______________________
Philomena M. Dane (0044064)
(Trial Attorney)
Johnathan E. Sullivan (0072371)
Squire, Sanders & Dempsey L.L.P.
1300 Huntington Center
41 South High Street
Columbus, OH 43215
(614) 365-2700
(614) 365-2499 (fax)

Attorney for Defendant Board of Trustees
of the Columbus Metropolitan Library,
Larry D. Black, and Vonzell Johnson




CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the foregoing Defendants' Reply in Support of Summary Judgment and Memorandum Contra Plaintiff's Motion for Summary Judgment, together with the accompanying Appendix, was served by regular U.S. mail, postage prepaid, upon Robert A. Neinast, Plaintiff, 8617 Ashford Lane, Pickerington, Ohio 43147, this 17th day of October, 2001.





Footnotes:

1. Moreover, given that Plaintiff only walks barefoot when it is not too cold, when he is not at work, when he is not at formal events, and when his activity "does not require shoes," it is clear that such conduct does not convey any "particularized" message. (Plaintiff's M. S.J., Ex. 1, ¶2). [Back]

2. In Isaacs v. Bd. of Educ., 40 F.Supp.2d 335, 336-37 (D. Md. 1999), the court assumed that a headwrap was speech for purposes of upholding a school regulation regulating hats, but expressed some doubt over whether such an item of clothing could be considered speech: "It is also not entirely clear that there is a 'great likelihood' that [the plaintiff's] message was and would be 'understood by those who viewed it.' . . . Although the record does reflect that several teachers and administrators know that the wearing of headwraps may be said to be part of the African-American cultural heritage, at least some of them became aware of this fact after the present controversy arose. Moreover, their understanding was based on what [the plaintiff] and her mother told them, not from their observation of the headwrap itself.") [Back]

3. Indeed, allowing an after-the-fact explanation to convert unprotected conduct into protected speech would all but eliminate the difference between the two. [Back]

4. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), for instance, recognized a general right of access to the broadcast media. That case was the produce of the Court's view of broadcast frequencies as uniquely "scare resources." Moreover, in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (holding that newspapers did not share a duty similar to that placed upon public broadcast media by Red Lion) (1974), the Court explicitly limited the so-called right of access in Red Lion to the broadcast media. [Back]

5. Stanley v. Georgia, 394 U.S. 557 (1969) and Griswold v. Connecticut, 381 U.S. 479 (1965), also do no support the affirmative right of access envisioned by Kreimer. Stanley involved a constitutional challenge to the conviction of the defendant, who was arrested for possessing obscene materials in his home. Griswold involved the conviction of a Planned Parenthood coordinator who gave advice to a married couple regarding birth control, in violation of state law. In both cases, the Court protected the receipt of information as an aspect of the recipient's right of privacy, not the right of free speech. Griswold supra at 485 ("The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees." Q>); Stanley, supra at 565 ("[Appellant] is asserting the right to read or observe what he pleases - the right to satisfy his intellectual and emotional needs in the privacy of his own home. He is asserting the right to be free from state inquiry into the contents of his library. . . . Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one's own home. . . . [A] State has no business telling a man, sitting alone in his own house, what books he may read. . . .") (emphasis added) Thus, neither of these opinions stands for a constitutional right to receive information from a particular public venue. [Back]

6. Although some of these cases apply the analysis used in Central Hudson v. Gas & Electric Corp. v. Public Serv. Comm., 447 U.S. 557, 561 (1980), various courts have held that this test is "substantially similar" and even "duplicative" of the test for assessing the validity of time, place, or manner restrictions. San Francisco Arts & Athletics Inc. v. United States Olympic Committee, 483 U.S. 522, 537; see also Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 444 (1993) (standards are "duplicative"); Cleveland Area Bd. of Realtors v. City of Euclid 833 F.Supp. 1253 (N.D. Ohio 1993) (attempting to differentiate between the two, and concluding that it would apply the time, place, or manner analysis, because the two were nearly identical) [Back]

7. All of Plaintiff's historical argument in support of a stricter standard of scrutiny are drawn nearly verbatim from the dissent in Kelley. [Back]

8. In answer to this authority, Plaintiff presents a litany of hair length cases, none of them truly supporting the idea that a right to choose hair length is a "fundamental" right sufficient to draw heightened scrutiny. More importantly, this Circuit's authority is directly contrary to the cited cases. See Gfell v. Rickelman 441 F.2d 444, 446 (6th Cir. 1971) ("We are unable to agree with some courts that the freedom of choosing one's hair style is a fundamental right" Q>); Jackson v. Dorrier, 424 F.2d 213, 218 (6th Cir. 1970) (disagreeing with precedent establishing a right under the First, Fourth, Fifth, Ninth and Fourteenth Amendments to choose hair length).

Furthermore, hair length restrictions are not truly analogous to the requirement that library user wear shoes. Hair and beard length are comparatively persistent and pervasive characteristics. Requiring a Library patron to cut his hair or shave his beard would necessarily affect the individual's personal appearance in all aspects of his life. In contrast, the requirement that Library users wear shoes wihle they are in the Library creates only a minor and temporary limitation on Plaintiff's ability to engage in behavior he enjoys. Several of the cases cited by Plaintiff as requiring government entities to carry a "substantial burden of justification" for hair length restrictions rely on the persistant effect of such restrictions in reaching their conclusions. See Breen v. Kahl, 419 F.2d 1034 (7th Cir. 1969) ("[I]t would be impossible to comply with the long hair regulation during school hours and follow the wishes of the students and their parents as to hair length outside of school." Q>); Crews v. Cloncs, 432 F.2d 1259 (7th Cir. 1970) (same). [Back]

9. For instance, Lansdale v. Tyler Junior College, 470 F.2d 659 (5th Cir. 1972), which struck down a rule compelling college students to cut their hair, does not stand for the proposition that "adult free citizens" have a "fundamental right" to freedom of personal appearance. To the contrary, Lansdale is consistent with the other 5th Circuit (and 6th Circuit) case law in applying the rational basis test: "In the absence of a showing that unusual conditions exist, the regulation of the length or style of a college student's hair is irrelevant to any legitimate college administrative interests and any such regulation creates an arbitrary classification of college students." Q>); Id. at 664 (emphasis added). Thus, Lansdale applied the rational basis standard to invalidate a far more pervasive intrusion on personal freedom than the requirement that shoes be worn in the library.

Plaintiff likewise relies on DeWeese v. Palm Beach 812 F.2d 1365 (11th Cir. 1987), in which the challenged regulation was a general requirement that all persons wear shirts while outdoors. Plaintiff mentions only is passing that the regulation was challenged under the rational basis test and he does not acknowledge that the ordinance at issue in DeWeese, which effectively precluded anyone from going shirtless outside his home, imposed a much more onerous and pervasive restriction than that which he challenges here.

Finally, Plaintiff relies on Schneider v. Ohio Youth Comm'n, 31 Ohio App. 2d 225, 229-30 (Franklin Cty. 1972), which actually upheld a hair-length requirement, as indicating that Ohio recognizes a fundamental right to wear one's hair at any length. Plaintiff fails to mention that the court held against the plaintiff in Schneider, or that the court engaged the issue from a First Amendment, not a substantive due process, perspective. Id. In any event, the court seems to have employed the rational basis test (or a test very similar to it) to evaluate the hair length requirement: "Such laws or regulations must be reasonable and related to the evil which the state is attempting to prevent, and there must also be the appropriate right of [the state employee] affected to be heard." Q>); Id. at 230.

Although not relied upon by Plaintiff, another dress code case, Hodge v. Lynd, 88 F.Supp. 2d 1234 (D. N.M. 2000) employed the rational basis test in invalidating a much greater restriction on liberty than the shoe requirement represents. In Hodge, the plaintiff challenged a county fair's rule vesting in sheriff's deputies the discretion to eject individuals they believed to be engaged in gang-related activities based on their clothing. Plaintiff's minor child, an individual wearing his baseball cap backward, was so ejected. Again, the court employed the rational basis test to evaluate the regulation: "It is apparent under current case law that one's liberty interest in personal dress or appearance, while commonly recognized by courts, is less significant than other, more fundamental rights. . . . Courts recognizing the liberty interest in personal dress and appearance have almost uniformly applied the rational-basis test, rather than the more stringent intermediate-scrutiny or strict-scrutiny tests, to determine the validity of state action infringing that liberty interest." Id. at 1242.

In holding that the fair's regulation violated this right, the court concluded that it vested too much discretion in individual officers to choose what clothing might be gang-related, and as a result cast too wide a net. Obviously, the shoe requirement has no such problem: since it is readily apparent when an individual is barefoot, the rule allows no discretion for an individual security officer's interpretation of that conduct, and thus does not expose citizens to the potential for arbitrary enforcement. [Back]

10. Plaintiff's Equal Protection claim must also be evaluated under the rational basis test, to the extent that it is cognizable at all, because he has not alleged that he is a member of a constitutionally-protected group (or "suspect class"). Where a plaintiff is not a member of such a group, he or she must plead and prove that the challenged regulation is not supported by a rational basis. See Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Stevens v. Trumbull County Sheriff's Dep't, 63 F.Supp. 2d 851, 856 (N.D. Ohio 1999); McDonald's Corp. v. City of Norton Shores, 102 F.Supp. 431, 438 (W.D. Mich. 2000)

In this case, Plaintiff not only has failed to allege that he belongs to a suspect class, but has failed to articulate any class of people disproportionately affected by the Library's shoe requirement. Under these circumstances, Plaintiff has failed to state an Equal Protection claim at all. See Capital Leasing Co. v. Columbus Municipal Airport Authority, 13 F.Supp. 2d 640, 655-66 (S.D. Ohio. 1998), aff'd., 1999 U.S. App. LEXIS 13845 (6th Cir. 1999). [Back]

11. Although many of the cases in this section describing the rational basis test do so in evaluating challenges under the Equal Protection Clause, the standard for evaluating substantive due process claims is virtually identical in all relevant aspects. In re Wood, 866 F.2d 1367 (11th Cir. 1989) [Back]

12. Plaintiff presents a number of arguments aimed at showing that the Library did not really promulgate the regulation for the purposes it contends. These arguments are of no import. The rational basis standard "never require[s] a [decisionmaker] to articulate its reasons for enacting a statute, [and] it is [thus] entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature." United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 179 (1980). For the same reason, the absence of contemporaneous "factfinding" articulating the reasons for a decision has no significance in rational basis analysis. See v. Hahn, 505 U.S. 1, 15 (1992) (equal protection "does not demand for purposes of rational[] basis review that a . . . governing decisionmaker actually articulate at any time [its] purpose or rationale. . . ."). In other words, a legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data. See FCC v. Beach Communications, 508 U.S. 307, 315 (1993).

Parties challenging legislation under the rational basis test may introduce evidence supporting their claim that it is irrational. They cannot prevail, however, so long as "it is evident from all the considerations presented to [the decisionmaker], and those of which [the Court] may take judicial notice, that the question is at least debatable." Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 (1982). In this case Plaintiff has presented no evidence supporting his claim that the shoe requirement is irrational. His unsupported personal assertions certainly do not warrant summary judgment in his favor. [Back]

13. Plaintiff makes much of the fact that the plaintiff in Oladipupo was an immigration detainee. This ignores the essential proposition for which Defendants have cited the case: that protecting individuals from slips and foot injuries is a legitimate governmental interest. [Back]

14. Plaintiff criticizes the Defendants for relying on cases that largely deal with the fiscal integrity of large government programs. The Sixth Circuit itself, however, has analogized the interest in maintaining the fiscal integrity of municipalities and corporations to that in maintaining the fiscal integrity of larger government programs. [Back]

15. That the Library has not implemented a policy requiring particular footwear is irrelevant. See Semler v. Oregon State Bd. of Dental Examiners, 294 U.S. 608 (1935). A decision maker is permitted to take action that is either under inclusive or over inclusive without offending the Constitution, and need not "strike at all evils at the same time or in the same way." New Orleans v. Dukes, 427 U.S. 297, 303 (1975) (A government entity "may . . . adopt[] regulations that only partially ameliorate a perceived evil [,] deferring complete elimination of the evil to future regulations.").

It is similarly irrelevant that Plaintiff can imagine more comprehensive regulations. The rational basis standard is satisfied when the decisionmaker "could rationally have decided" that the measure taken would effect the articulated end. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981); see also Vance v. Bradley, 440 U.S. 93, 97 (1979) ("[J]udicial intervention is generally unwarranted no matter how unwisely [the Court] may think a political branch has acted."). [Back]

16. Indeed, no due process violation was found in any of the cases cited by Plaintiff for the impropriety of delegating authority within a political subdivision, municipal corporation or similar body. The cited cases are concerned solely with the validity of the delegation under the relevant Ohio statutory law. See Bell v. Board of Trustees, 34 Ohio St. 2d 70 (1972) (Plaintiffs argued that the Board of Trustees of a county hospital had exceeded its authority under O.R.C. §§ 339.06 and § 4117.04 by delegating the authority to conduct hearings to a hospital administrator and assistant administrator; there was no lack of due process in the proceedings, or any allegation one); Vasas v. Cuyahoga Cty. Hosp., July 5, 1979 Ohio App. LEXIS 9081 (Lorain Cty. 1979) (whether the board of trustees of a hospital has the power, under O.R.C. § 339.06, to delegate authority to sign a termination order); Sproul v. Wooster, 840 F.2d 1267 (6th Cir. 1988) (whether for purposes of agency law the City of Wooster had delegated authority to bind itself in a contract to extend water and sewer services to its mayor; although the plaintiff had a separate due process claim, it was not considered, and does not seem, from the case's context, to have been related to the improper delegation of authority); State v. Cooper, 120 Ohio App. 3d 284 (Franklin Cty. 1997) (whether a criminal defendant's breathalyzer test should be suppressed from evidence because the director of the Ohio Department of Health had delegated his authority to "determine, or cause to be determined, techniques or methods for chemically analyzing a person's blood, urine, breath, or other bodily substance" under O.R.C. § 3701). [Back]

17. The Board's delegation of power to the Library's director was proper in any event as a matter of Ohio law. That issue was addressed fully in Defendants' Memorandum in Support of Summary Judgment at pages 9-10. [Back]

18. Plaintiff contends that the Defendants have failed to ask for qualified immunity with regards to Plaintiff's procedural due process argument. As explained above, Plaintiff's "procedural due process" claim is actually based solely on state law, because he does not possess any due process right in the process of administrative rulemaking. Because Plaintiff's claim is not cognizable at all under § 1983, the Defendants should have no need for qualified immunity from that claim. [Back]

19. Much of Plaintiff's First Amendment argument is based on the idea that it is a "common misconception" that rules similar to the shoe requirements are mandatory. (Plaintiff's M. S.J., Ex. 1, ¶4-8, Ex. E, F.) That premise is at odds with the contention that "reasonable administrators" would know that such rules are constitutionally impermissible, as Plaintiff contends. [Back]