[This op-ed column appeared in the January 27, 1980, issue of the Wichita Eagle and Beacon.] 


No Outdoor Rock Concerts in Chisholm Creek Park 


Dwight D. Murphey


            Chisholm Creek Park, which has been on the drawing boards for several years and which is about to be developed, will be a splendid new addition to the Wichita park system.  It will cover a broad expanse between Oliver and Woodlawn north of 29th Street in a rapidly growing part of northeast Wichita.

            Many of the residents in that part of the city have been outraged to hear, however, that a proposal is pending to establish a major facility in the park (just off Woodlawn quite close to the Cottonwood Village residential development), which will be the site for all outdoor rock concerts in Wichita in the future.  Tom Allen, the parks director, has estimated 40 to 50 concerts a year, including the rehearsals.

            Why are they outraged?  Because it seems self-evident to them that an activity that for seven years proved a serious public nuisance to the residents near Riverside Park, and that provided the setting for the violent behavior of last Easter’s riot in Herman Hill Park, ought not now to be moved simply to another urban location where that same nuisance will be visited upon yet another group of long-suffering citizens.

            They think it is time we faced up to the question in Wichita of whether there is any public duty for the city to provide a place for outdoor rock concerts.

            (The “outdoor” feature is important, since outdoor concerts provide no built-in limitation on the potential size of the crowds.  We remember the 300,000 people who came “over the fence” at Woodstock.)

            The proponents of the site have started with a premise that there is such a duty: “Historically, one of the uses for parks has been for concerts.  And if the parks are available for band concerts and the like, there is in principle no right on our part to treat rock music fans any differently.”

            I thoroughly disagree with this premise, however, because I believe that experience has demonstrated a clear difference between outdoor rock concerts and virtually any other use of our parks.  Such concerts are not on a par with a softball game on a diamond in a park, or with a ballet performance along the river in A. Price Woodard Park, or with the annual performance by the Wichita Symphony at the Wichitennial.

            The concept of “equal protection of the laws,” which is enshrined in the 14th Amendment and which has a 2,500-year history in Western civilization going back to the ideal of “isonomy” among the ancient Athenians, does not and indeed cannot command that all things be treated alike.  An understanding of it requires more sophistication than that.

            Instead, the concept requires that government must give equal treatment “to all things that cannot reasonably be classified as being different.”  (This is a norm that, by the way, has been applied much more consistently with regard to the prohibitory functions of government than to the so-called “positive” functions, such as to a governmental decision to dredge a canal in one river but not in another.)

            In the history of American constitutional law, there have been thousands of court decisions in which judges have grappled, on a case-by-case basis, with the question of what constitutes a “reasonable classification.”

             Is it necessary for anyone to assume that either as a matter of public ethics, or in contemplation of what a court might rule on the subject, the City of Wichita has to blind itself to realities and to act as though outdoor rock concerts cannot reasonably be classified as being different from picnics, polka parties and canoe races?

            There is nothing in the principle of “equal protection” that requires that the problem of classification be approached naively or with an ideologically-induced blindness to the teachings of experience.

            And the reality with regard to outdoor rock concerts is that they cater, at least in the cultural milieu of the past few years, to potential audiences that include to a significant degree an element of society that has very little respect for the rights of others, for authority, for the police, and indeed for the basic values that cement together a civilized community.

            Mr. Allen has persuaded himself, no doubt sincerely, that the rock concert that was going on at Herman Hill Park had almost nothing to do with there having been a serious riot there last Easter.

            I surmise that he has been pushed and shoved and buffeted on this issue of rock concerts for so many years that he has mentally and emotionally reached out for an accommodation that will, in effect, allow the issue simply to “go away.”  And it disappears altogether if indeed rock concerts are as benign as he says they are.

            We are justified in thinking, though, that if the incident that started the Herman Hill riot had occurred instead at a band concert, or a country music festival, or a horseshoe tournament, the arresting police would not have been confronted en masse by hundreds of hysterical yahoos.  People who basically respect their city and orderly process don’t act that way.  In fact, when we hire police we have every right to expect that they will be backed up, not rampaged against, in a situation like that.

            No court would be justified, as a matter of law, in insisting that the legislative and administrative authorities of the City brush aside these realities.  And a political philosopher who would theorize that in principle we would be denying “equal treatment” to rock music lovers if the City provided no outdoor facility for their concerts, needs to reexamine his premises.  He would clearly lack a good working understanding of the equal protection concept.

            What rock fans need to do, and what the City should insist upon as a condition precedent to any future supportiveness on its part, is to demonstrate over a convincing period of time that their audiences are free of significant anti-social elements.  Then when experience with indoor rock concerts has shown that outdoor concerts would no longer have a probability of being serious public nuisances, the time will be ripe for the fans of rock music to reapply for public favor.

            Until that day comes, the city government should keep an undiluted commitment to the most fundamental task of government in general: the protection of the rights of the citizens at large and the preservation of public order.