• Key point 14-06. Adults may use public property for religious purposes if the property is used by community organizations for non-religious purposes. Excluding religious speech, while allowing other kinds of speech, violates the first amendment guaranty of free speech. Use of Public Property for Religious Purposes

A federal appeals court ruled that a religious group could not use public school property for religious services because the property was not a “public forum” that had been opened to a wide variety of community groups. A public school district developed a written use policy for non-student groups who wished to use school facilities after hours. That policy permitted buildings to be used for civic, recreational, and entertainment purposes that were open to the public and pertained to the “welfare of the public.” It did not permit partisan political activity or for-profit fund-raising. The policy also forbids uses involving “religious services or religious instruction” but permits discussions of religious material or material containing a religious viewpoint. A religious organization requested use of school facilities for a “prayer meeting” at which the group planned “to worship the Lord in prayer and music … to discuss family and political issues, pray about those issues, and seek to engage in religious and Biblical instruction with regard to those issues.” The school district denied the request, citing the policy, and the religious organization filed a lawsuit in federal court challenging the district’s decision. A federal district court ruled that the school district’s policy was unconstitutional. A federal appeals court disagreed. It concluded:

The right to speak on public property is largely dependent on the nature of the forum in which the speech is delivered. If the government has designated a forum as public, even if it was not traditionally public, the government’s exclusion of a group from the forum is subject to strict scrutiny [meaning that a “compelling government interest” must be proven to justify the exclusion]. If the government has not so opened the forum, the government may exclude groups as long as that exclusion is reasonable and viewpoint neutral.

To avoid strict scrutiny, the school district’s policy thus must not have created a public forum. Although a school is not a traditional public forum, a district may designate it as such by indiscriminately permitting use by the public at large for assembly and speech. A school may selectively open itself to some public use, however, without creating a designated public forum. In such cases, the government may restrict access to certain kinds of groups or to the discussion of certain topics. At some point, the allowance of a sufficiently wide variety of uses creates a designated public forum.

Had the school district in this case created a “public forum” by allowing a sufficiently wide variety of uses on its property by outside groups? If so, then it could not deny religious groups the right to use school property unless it could prove that its policy of excluding religion furthered a compelling government interest. This is a very difficult standard to meet. The court acknowledged that “in cases where courts have held that schools had created a public forum, the school’s access policy was completely open except for a religious prohibition.” By contrast, the court noted that the school district’s policy excluded partisan political activity and for-profit fund-raising in addition to religious activities, and therefore “the policy’s restrictions indicate that the school’s purposes in allowing some public use have not reached the point at which any use-save targeted religious activities-is allowed. We are thus persuaded that the restrictions are minimally sufficient to maintain the school buildings’ status as a non-public forum.”

As a nonpublic forum that allowed limited public access to its property, the school only had to prove that its exclusion of religious groups was

reasonably related to the purposes of the forum and discriminated only on the basis of content, not viewpoint. The government may not exclude a speaker with a religious viewpoint if it has permitted other speakers on similar topics …. This does not mean that any ban on religious activities amounts to viewpoint discrimination. Religion may be either a perspective on a topic such as marriage or may be a substantive activity in itself. In the latter case, the government’s exclusion of the activity is discrimination based on content, not viewpoint …. [We conclude that] religious services and religious instruction are activities which may be excluded as content-based discrimination [since they] are not simply approaches to a topic, but activities whose primary purpose is to teach and experience the subject of religion. These are activities distinct from a topical discussion, a social gathering, or a political meeting. The school district has excluded such religious activities but does not forbid speakers on general topics with a religious perspective-a distinction that viewpoint neutrality permits.

The court acknowledged that the school district had opened the property for religious uses by permitting a church banquet and a gospel choir, but it concluded that these uses had not transformed the property into a public forum, since “while these groups may have had religious affiliations, the events involved no religious instruction and were not prayer meetings. We are not persuaded that the school district has permitted speakers on similar topics.”

Application. This case provides a useful analysis of the right of churches to use public school property. Whether a public school must allow a church to use its property depends on the proper classification of the school property.

1. Public forum. A school becomes a “public forum” by allowing “a sufficiently wide variety of uses” of its property by outside groups. If a school is a public forum, then any exclusion of religious groups is subject to a “strict scrutiny” analysis by the courts, meaning that the exclusion must be supported by a “compelling government interest.” Since proof of such an interest is difficult if not impossible in most cases, a school that has become a public forum generally will not be allowed to exclude religious groups.

2. Nonpublic forum, with no access by outside groups. A school is a nonpublic forum if it does not allow a wide variety of outside groups to use its property. If the school allows no outside groups to use its property, then religious groups cannot complain that they have been wrongfully denied access to school property.

3. Nonpublic forum, limited public use. If a school allows access to its property by only some outside groups, then it is free to exclude religious groups so long as such an exclusion is “reasonably related to the purposes of the forum” and is based on the religious content rather than religious viewpoint. In other words, a school that is a nonpublic forum may be able to exclude worship services, but not persons wanting to express a religious viewpoint on issues that may be addressed by outside groups or speakers. Campbell v. St. Tammany’s School Board, 206 F.3d 482 (5th Cir. 2000).

© Copyright 2000 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 c0101