Recent Developments in Federal Court Regarding Freedom of Religion – Part 2

A federal appeals court ruled that a church’s constitutional rights were not violated by a public school district rule prohibiting it from conducting religious worship on public school property.

Church Law and Tax1998-07-01

Freedom of Religion

Key point. Public school officials can designate school property as a “limited public forum” by allowing use of the property only for specified purposes. A policy prohibiting use of school property for religious worship is permissible so long as such an exclusion is reasonable and viewpoint neutral.

A federal appeals court ruled that a church’s constitutional rights were not violated by a public school district rule prohibiting it from conducting religious worship on public school property. The church had asked school officials for permission to use a middle school auditorium for weekly religious services after it outgrew its own facilities. School officials denied this request. School policy allowed school property to be used for a wide variety of outside groups for civic, social, and recreational purposes. However, school property could not be used for religious services. The relevant policy specifies:

No outside organization or group may be allowed to conduct religious services or religious instruction on school premises after school. However, the use of school premises by outside organizations or groups after school for the purposes of discussing religious material or material which contains a religious viewpoint or for distributing such material is permissible.

The church challenged the school’s denial of its request to use school property for religious services. A federal appeals court upheld the policy. It noted that “freedom to speak on government property is largely dependent on the nature of the forum in which the speech is delivered.” It referred to three types of “forums” that have been recognized by the Supreme Court:

(1) Traditional (or “open”) public forums. These include streets, parks, and places that “by long tradition have been devoted to assembly and debate.” Restrictions in speech on such property are “subject to the highest scrutiny” and survive only if they “are narrowly drawn to achieve a compelling state interest.”

(2) Limited public forums. These are “created by government designation” for use “by certain speakers or for the discussion of certain subjects.” Restrictions on access to such forums based on speaker identity and subject matter “are permissible only if the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.”

(3) Nonpublic forums. Government property that has not been opened for public speech either by tradition or by designation. The government deny access based on either subject matter or speaker identity.

The court concluded that the public school in question was a limited public forum since school officials allowed only some groups to use school property for designated purposes. As a result, the exclusion of religious worship from this forum was legitimate only if it was “reasonable in light of the purpose served by the forum” and was “viewpoint neutral.” The court concluded that both of these requirements were met, and therefore the school policy was legally permissible. The court noted that religious groups are free to use school property after hours for purposes of discussing religious material or material with a religious viewpoint. It was only the use of school property for religious worship that was excluded. Bronx Household of Faith v. Community School District, 127 F.3d 207 (2nd Cir. 1997).
[Use of Public Property for Religious Purposes]

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