Church Rental of School Facilities

Court rules that schools cannot exclude churches from renting facilities.

Richard R. Hammar, Attorney, CPA

Bio

State: Nevada
Categories: Schools

Church Law and Tax 1994-01-01 Recent Developments

Freedom of Religion

Richard R. Hammar, J.D., LL.M., CPA

• Key point: A public school that allows a wide range of community groups to rent its facilities cannot deny the same privilege to churches.

• A federal district court in Nevada ruled that a public school policy that permitted a wide variety of community groups to rent school facilities, but denied the same opportunity to churches, violated the first amendment guaranty of free speech. A local church asked for permission to rent a portion of a public high school building for Sunday services. A public school official informed the church’s pastor that the school facilities were not rented to churches. School board regulations and state law permitted school facilities to be rented for “public, literary, scientific, recreational, or educational meetings, or for the discussion of matters of general or public interest.” Rental to religious organizations is not specifically prohibited, but school authorities interpreted the law and regulations to prohibit religious use. The church sued the school district, claiming that its constitutional rights were violated by the school policy. A federal district court agreed. It observed that the school district had created a “limited public forum,” meaning that it had opened its facilities to some but not all community groups. The court acknowledged that “when a school district creates a limited public forum, the property remains a nonpublic forum as to all unspecified uses.” But it cautioned that “if a school district wishes to exclude a category of speech or speakers … access to the forum must be limited by well-defined standards tied to the nature and function of the forum.” The court concluded that the school district failed this test, since its policy of excluding only religious speech “does not contain narrowly circumscribed guidelines.” Further, in practice the school district had allowed a number of groups to use school facilities for religious purposes, and this undermined its claim that its guidelines were “well-defined and consistently applied.” The court rejected the school district’s claim that it was compelled by the first amendment’s prohibition of an establishment of religion to deny churches access to its properties. It noted that the school district “has no compelling state interest in for excluding use of the forum by a group with a religious message.” The court acknowledged that the school district “does not have a legal or constitutional obligation to open its school buildings to the public.” Wallace v. Washoe County School District, 818 F. Supp. 1346 (D. Nevada 1992).

© Copyright 1994, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m47 c0194

Legal Developments

Freedom of Religion – Part 1

Church Law and Tax 1989-05-01 Recent Developments Freedom of Religion Richard R. Hammar, J.D., LL.M.,

Richard R. Hammar, Attorney, CPA

Bio

State: Nevada
Categories: Freedom of Religion, Schools

Church Law and Tax 1989-05-01 Recent Developments

Freedom of Religion

Richard R. Hammar, J.D., LL.M., CPA

• Does a church have a legal right to conduct Sunday worship services in a public high school auditorium? No, concluded a federal district court in Nevada. A church of about 100 members had been meeting in a privately-owned auditorium. Its pastor asked local school officials if the church could rent the public high school auditorium on Sunday mornings. The school officials declined this request on the basis of a school policy prohibiting use of school facilities for religious uses. The church immediately filed a lawsuit against the school district, seeking a court order permitting use of the public high school auditorium on Sundays. In support of its case, the church argued that the high school permitted many non-religious groups to rent the auditorium, and it thereby had created an “open forum” that could not be denied to any group (including a church). The school district argued that its policy of denying access to its facilities by religious groups was required by the constitutional principle of “separation of church and state.” The court agreed that the school district had created an “open forum” by permitting various community groups to rent the high school auditorium. However, the court concluded that the district’s refusal to rent the auditorium to the church was justified, since rental of the facility to the church would “have the primary effect of advancing religion” in violation of the nonestablishment of religion clause of the federal constitution. The court stressed that the church desired to use the school auditorium as the “permanent site for its church services and activities.” It noted that the church “has no building site nor does it have any present plans to acquire a site or construct a church facility.” As a result, the high school “will become the physical embodiment of the church,” and in this sense the church’s request was “significantly different” from the requests of other community organizations to rent the facility, since no other community group sought to “become permanently institutionalized within the school.” The court cited with approval a previous federal court decision in Kansas in which a court upheld the right of a church to rent public school property on a temporary basis. Presumably, had the Nevada church requested permission to rent the school auditorium for a temporary period of time (e.g., until it constructed a new sanctuary), the court would have ruled in favor of the church. This conclusion is consistent with a number of previous court rulings. Wallace v. Washoe County School District, 701 F. Supp. 187 (D. Nev. 1988).

© Copyright 1989, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m47 c0389

Legal Developments

Internal Revenue Service

Administration

Richard R. Hammar, Attorney, CPA

Bio

State: Alaska

• Your chances of being audited by the IRS are highest (2.61%) in Nevada and lowest (0.47%) in Rhode Island, according to recently released IRS data. The five states with the highest audit risk are Nevada, Alaska, Utah, Wyoming, and California. The five states with the lowest risk are Rhode Island, Kentucky, Indiana, Massachusetts, and New Hampshire. The national average in 1986 was 1.1%, down from 2.3% in 1975. The IRS plans to audit 1.23% of all individual income tax returns in 1987, and 1.32% in 1988.