• 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 appeals court ruled that a public school violated the constitutional rights of a church by charging it more rent than it charged other community organizations for the use of school facilities. A public school board permitted a wide variety of civic and community groups to use its facilities. Most such groups paid a rental fee substantially less than the commercial rate. Churches were permitted to use school facilities, and they were charged the same rate as other civic and community groups for the first 5 years they rented school facilities. However, after 5 years, churches paid a substantially higher rental fee. No other civic or community group paid the higher fee after 5 years. School officials freely acknowledged that the policy singled out churches for higher rent, but it insisted that the purpose was to encourage churches to go elsewhere out of a concern that continued use by churches of public school facilities might violate the first amendment’s prohibition of an establishment of religion. A church that organized in 1980 began renting school facilities. For 5 years it paid the discounted rate, and later began paying the commercial rate. The church estimated that it paid $290,000 in additional rent because of the school board’s policy regarding churches. The church sued the school board, claiming that the rental policy for churches violated the first amendment guarantees of speech and religion. It also demanded a refund of the excess rent it had paid. A trial court agreed with the church that the school board’s policy was unconstitutional, but it refused to award the church the excess rent it paid because of the policy. The church appealed. In a significant ruling, a federal appeals court agreed with the trial court that the policy was unconstitutional, and it ruled that the church was entitled to sue for a return of the excess rent it paid under the policy.
The court based its decision on a 1981 decision of the United States Supreme Court holding that when a state university creates a “public forum” by making its facilities available to diverse student groups, it can deny a religious group access to those same facilities only by showing some compelling state interest. Widmar v. Vincent, 454 U.S. 263 (1981). The Supreme Court recognized that state institutions are not required by the constitution to transform their facilities into a public forum, but when they do they cannot discriminate against or exclude student groups that wish to engage in religious worship and discussion absent proof of a compelling state interest. The Supreme Court rejected a state university’s argument that the first amendment’s ban on the establishment of religion was a sufficiently compelling interest to justify the exclusion of religious groups from using university facilities that were available to other groups. It observed that “an open forum in a public university does not confer any imprimatur of state approval on religious sects or practices,” especially when the forum is open to a “broad class of nonreligious as well as religious speakers.” It concluded: “[W]e are unable to recognize the state’s interest [in maintaining a greater separation of church and state] as sufficiently compelling to justify content-based discrimination against [students’] religious speech.” The appeals court summed up the Supreme Court’s 1981 decision by noting that “a policy of equal access to a public forum which allows for religious uses does not conflict with the [nonestablishment of religion clause of the first amendment].” Finding “no basis” to distinguish the Supreme Court’s 1981 decision from the present case, the court ruled that the school board’s policy of charging higher rental fees to churches violated the first amendment guaranty of free speech. The court further found that the policy violated the constitutional right of religious organizations to freely exercise their religion. It referred to a 1993 decision of the Supreme Court holding that laws which discriminate on the basis of religion are valid only if narrowly tailored to serve a compelling state interest. Once again, if found such a compelling interest lacking.
The court then responded to the school board’s claim that below-market rents combined with long-term or permanent use of school facilities by a church violates the nonestablishment of religious clause. The school board noted that the Supreme Court in the Widmar case (discussed above) observed that a state may have a compelling interest in excluding religion from a public forum if religious organizations “dominate” the forum. The appeals court concluded that such was not the case here: “The school board created a public forum to which it provides access to all sorts of uses, including religious uses. In a given year, it receives approximately 8,500 applications for use of its 172 schools, about 50 of which are from churches.” This was not “domination” of the public forum by religious organizations. The court also rejected the school board’s claim that by allowing churches to pay a below-market rental fee, it was “subsidizing” religion. Churches would be paying the same rental fees as other civic and community groups, at a rate designed to reimburse schools for the direct expenses of using their facilities.
Finally, the court allowed the church to sue the school board for a return of the excess rents it paid under the unconstitutional rental policy. In rejecting the school board’s claim that requiring it to refund excess rents back to the church would “cripple” it financially, the court observed: “[W]e are not impressed. In this case, the claim is for slightly more than $280,000, plus interest …. Against an annual [public school] budget of $850 million, we cannot say that the potential award in this case is so substantial” as to relieve the school board from liability. This case will be relevant to those many religious organizations that use public school facilities. Not only does this case strongly endorse the right of churches to use public school facilities that are available to other civic and community groups, but it demonstrates that churches cannot be charged more rent than other organizations. Perhaps as important, the court rejected the school board’s suggestion that allowing a church to rent school facilities at a below-market rate for a long period of time automatically violates the first amendment prohibition of the establishment of religion. Such may be the case, but only if religious use of the public forum is “dominant.” This case is controlling in the 4th federal circuit, which includes the states of Maryland, North Carolina, South Carolina, Virginia, and West Virginia. It will be persuasive but not controlling in other jurisdictions. Fairfax Covenant Church v. Fairfax County School Board, 17 F.3d 703 (4th Cir. 1994).
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