• Key point. A public school that makes it auditorium available to community groups, including at least one religious group, cannot deny access to another religious group.
A federal court in New York ruled that a church could not be denied use of public school property that was made available to other community groups including at least one other religious organization. A Methodist church asked permission to conduct a magic show on public school property. The church’s application to the school indicated that the show would to be performed by a Christian illusionist, and would include a religious service. The school board denied this request on the basis of a state law banning use of public school property by religious organizations for religious purposes. The church sued the school board, claiming that its actions violated the constitutional guarantees of speech and religion. The church acknowledged that state law banned the use of public school property for religious purposes, but it noted that the school board had permitted a Pentecostal church to conduct a “Holy Ghost filled concert” on the same public school property that included singing, a sermon by a pastor, and an “altar call.” The court concluded that the school board’s denial of the church’s application to use the school property violated the constitutional guaranty of free speech. The court noted that the guaranty of free speech does not guarantee “unlimited access to government—owned property for purposes of expression” and that “depending on the nature of the property, the government may regulate access.” The court noted that speech may occur in four different kinds of “fora,” and that the government’s right to regulate speech differs depending on the forum involved. The application of the first amendment to the four fora are summarized below:
1. Public forum . A tradition public forum includes streets and parks “which have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” For the government to regulate or restrict speech in such a place “it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.”
2. Designated public forum. A “designated public forum” is government—owned property that has been opened to the public for “expressive activity.” Examples include university meeting facilities and municipal theaters. The court noted that the government is not forever bound to maintain the open character of the property, but so long as it does so it cannot regulate or limit free speech without a compelling state interest that is narrowly drawn to achieve that end.
3. Limited public forum. The court noted that this category is actually a variation of the designated public forum, and noted that it is created when government “opens a nonpublic forum but limits the expressive activity to certain kinds of speakers or to the discussion of certain subjects.” The idea here is a designated public forum that has been created for a specific purpose-such as use by certain groups or the discussion of certain issues. The test to be applied to government attempts to regulate speech in such a forum is the same that applies to public fora the limitation must be necessary to serve a compelling state interest and must be narrowly drawn to achieve that end. The court emphasized that “in a limited public forum, government is free to impose a blanket exclusion on certain types of speech, but once it allows expressive activities of a certain genre, it may not selectively deny access for other activities of that genre.”
4. Non—public fora. This category of forum includes public property that is not by tradition or designation a forum for public communication. Examples include prisons or school mail boxes. The government can regulate speech in such places as long as the regulation “is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.”
The school board claimed that state law had created a limited public forum that was available only to nonreligious groups. The court concluded that even if the school board had created a limited open forum, religious services were a permitted use since the board had previously allowed a church choir to use school property for a concert and religious service. As a result, it could not deny access by any group wanting to use the property for religious purposes.
The court rejected the school board’s argument that allowing the church to use school property for a religious service would violate the first amendment’s nonestablishment of religion clause. It observed: “[The performance] would not have occurred during school hours, would not have been sponsored by the school, and would have been open to the public, not just to church members. In addition, the school facilities have repeatedly been used by a variety of private organizations. [The Supreme Court has ruled] that where a forum is available to a broad class of speakers, allowing religious speech does not confer any imprimatur of state approval on religious sects or practices.”
The court concluded that “[t]he gospel concert occurred and it created at least a limited public forum for entertainment events including prayer, religious instruction, music and religious testimony. This means that the school board cannot selectively deny access for activities of the same genre ….” Trinity United Methodist Parish v, Board of Education, 907 F. Supp. 707 (S.D.N.Y. 1995). [Use of Public Property for Religious Purposes]
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