• Key point: A public school cannot prohibit a religious group concerned about the moral development of youth from using school facilities after school hours when secular organizations having the same concerns are granted access.
• A federal appeals court ruled that a public school district violated the constitutional rights of a Christian student group by denying it access to school property after school hours while permitting a secular organization with similar purposes to meet on school property. A public school district adopted a policy prohibiting any group to meet on school premises between 3:00 and 6:00 PM other than Scouts and athletic groups. A Christian student group sued the school district claiming that this policy violated the first amendment guaranty of free speech. The Christian group was organized to foster the moral development of school students from a Christian perspective. Its activities include singing, skits, Bible reading, prayer, and speeches by community role models. The Christian group claimed that both it and the Scouts had the same purpose of fostering the moral development of youth, and that the school district could not deny it access to school property solely on the basis of the religious content of its speech. A federal district court dismissed the Christian group’s lawsuit, and the case was appealed. A federal appeals court reversed the district court and ruled in favor of the Christian group. The court began its opinion by referring to a Supreme Court decision holding that a public school district could not deny a Christian group access to school property to show a family film series solely on the basis of the religious perspective of the films, when the same property was available to secular groups to address similar issues from a secular perspective. The Supreme Court concluded that
the government violates the first amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includable subject. The film involved here no doubt dealt with a subject otherwise permissible under [the school district’s regulations], and its exhibition was denied solely because the film dealt with the subject from a religious standpoint. The principle that has emerged from our cases “is that the first amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.” Lamb’s Chapel v. Center Moriches Union Free School District, 113 S. Ct. 2141 (1993).
The appeals court concluded that this principle required the school district in this case to permit the Christian group to meet. It noted that the school made its facilities available to the Scouts to promote the moral development of youth from a secular perspective, and accordingly it could not deny a Christian group the same privilege solely on the basis of the religious content of its speech. Any other result would permit the school district to prefer some viewpoints on the same subject matter over others, and this is precisely what is prohibited by the first amendment’s guaranty of free speech.
In summary, when a public school (or other public entity) creates a “non-public forum” by opening its property to only some groups to address a limited range of issues, it cannot prohibit other groups from using the same property to address similar issues solely on the basis of the religious content of their speech. The court rejected the school district’s argument that banning religious groups served a compelling and legitimate governmental interest of avoiding any violation of the first amendment’s prohibition of the establishment of religion.
There is one other aspect of the court’s ruling that should be noted. The school district permitted any community group, including religious organizations, to use school property after 6:00 PM on school days or after 8:00 AM on weekends. No one questioned the right of religious groups to meet on school premises during these hours. In other words, the school had created an “open forum” during these hours and could not deny access to that forum to any group on the basis of the content of its speech. This case addressed access by religious groups to the “non-public forum” that the school district had created between 3:00 and 6:00 PM each school day. Good News/Good Sports Club v. School District, 28 F.3d 1501 (8th Cir. 1994).
• Key point: The Lamb’s Chapel case, which was the basis for the federal appeals court’s decision, is addressed in a feature article in the September-October 1993 issue of Church Law & Tax Report.
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