• Key point: A public school that permits any community group to rent its facilities cannot charge churches a higher rental fee in order to encourage them to build their own facilities.
• A federal district court in Virginia ruled that a public school policy of charging churches more rent than other community groups for the use of school facilities violated the constitutional guaranty of free speech. A public school board allowed virtually any community group to rent school facilities. As many as 9,000 community groups and individuals rent some 180 school facilities each year. The school board adopted a policy that treats churches differently from any other group. For the first five years, churches pay the same rent as any other nonprofit organization. In the sixth year, they pay twice the nonprofit rate. In the seventh year they pay three times the nonprofit rate. In the eighth year they pay four times the nonprofit rate. After the eighth year they pay five times the nonprofit rate. Further, unlike any other nonprofit organization, churches are required to provide public school authorities with “satisfactory evidence of progress towards the construction or acquisition of a church site.” School authorities defended this special treatment of churches by arguing that allowing church groups “to use school facilities on a long-term basis, at a low rental rate, would constitute the establishment of religion.” A church that had rented school facilities for 11 years sued the school board for a violation of its constitutional rights. It also demanded a refund of some $235,000 (plus interest) in excess rental fees that it was forced to pay because of the school board’s discriminatory treatment of churches. A federal district court agreed with the church, and ordered the struck down the school board’s discriminatory policy. It observed that by allowing any community group (including religious groups) to rent school facilities, the school had created an “open forum.” Accordingly, the first amendment guaranty of free speech prohibited the school from discriminating against any group solely on the basis of the content of its speech. Since the school board discriminated against churches solely on the basis of the religious content of their speech, its policy of charging churches higher rental rates violated the first amendment. The court quoted from a previous decisions of the United States Supreme Court: “Religious institutions need not be quarantined from public benefits that are neutrally available to all.” The court rejected the school board’s claim that charging churches the same rent as any other nonprofit group had the “primary effect” of advancing religion in violation of the first amendment’s ban on the establishment of religion. The court observed: “Allowing religious groups to meet in an open forum like any other group, and pay the same rent as other groups, does not have the primary effect of advancing religion. It both allows and promotes the free exchange of ideas and speech.” The court acknowledged that the church received an incidental benefit by being able to rent school facilities, but it noted that the Supreme Court had concluded in a similar case that “a religious organization’s enjoyment of merely incidental benefits does not violate the prohibition against the primary advancement of religion.” The court deferred ruling on the church’s demand for a refund of $235,000 plus interest until the parties had an opportunity to file briefs on this issue. Fairfax Covenant Church v. Fairfax County School Board, 811 F. Supp. 1137 (E.D. Va. 1993).
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