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Nonrecurring Use of Public Property by Adults for Religious Events and Activities

§ 13.06
Key point 13-06. 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.

Several courts have ruled that public school officials cannot deny use of their facilities to religious groups if nonreligious community groups are permitted to use the facilities. In 1993, the United States Supreme Court unanimously ruled that a public high school that allows various community groups to rent its auditorium for "social, civic and recreational meetings and entertainments, and other uses pertaining to the welfare of the community," cannot deny the same privilege to a church that wants to rent the auditorium to show a religiously-oriented film series on family values. [50] Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993). Section 414 of the New York Education Law authorizes local school boards to adopt reasonable regulations for the use of school property for ten specified purposes when the property is not in use for school purposes. Among the permitted uses is the holding of "social, civic and recreational meetings and entertainments, and other uses pertaining to the welfare of the community; but such meetings, entertainment and uses shall be non-exclusive and open to the general public." The list of permitted uses does not include meetings for religious purposes, and a regulation interpreting section 414 specifies that "school premises shall not be used by any group for religious purposes."

Lamb's Chapel (the "church"), an evangelical church, twice applied to a local public school district for permission to use school facilities to show a six-part film series advocating traditional, Christian family values as the only deterrent to the undermining influences of the media. The school district denied the first application, saying that "[t]his film does appear to be church related and therefore your request must be refused."

The church brought suit in federal district court, challenging the school district's denial as a violation of the First Amendment's guarantees of speech, assembly, and religion. The church argued that since school properties could be used for "social, civic, and recreational" purposes, the school district had opened them to such a wide variety of "communicative purposes" that they were in effect "public forums," like public parks and sidewalks in which few restrictions on free speech are tolerated. The district court summarily dismissed the church's lawsuit, rejecting all of the church's claims. The church appealed this ruling, and a federal appeals court affirmed the judgment of the district court "in all respects."

The Supreme Court unanimously reversed the decisions of the district court and appeals court, and ruled in favor of the church. The Court noted that a public school may be a public forum, a limited public forum, or neither, depending on the circumstances of each case. A public school is an open forum if its facilities may be used by any outside organization without limitation. However, a public school becomes a limited forum if it may be used by only some outside organizations. This, of course, was the case here, since New York law specified that public school property could be used only for designated purposes including "social, civic and recreational meetings and entertainments, and other uses pertaining to the welfare of the community." The Court acknowledged that a public school could prohibit use of its facilities by any outside organization, in which case it would be neither an open forum nor a limited forum. It observed that "there is no question" that a school district "may legally preserve the property under its control for the use to which it is dedicated," and that the school district in this case "need not have permitted" after-hours use of its property by any community group.

The Court noted that the school district's properties in this case were "heavily used by a wide variety of private organizations." These included a New Age religious group known as the "Mind Center," the Southern Harmonize Gospel Singers, the Salvation Army Youth Band, a Council of Churches concert, the humane society's auction, a dance group, a baseball clinic, the chamber of commerce's "town fair day," a drama club, and both boy scouts and girl scouts. When a public school becomes a limited public forum, open to certain types of outside organizations, school officials cannot deny access to school facilities by a permissible group solely on the basis of the content of its speech. It observed:

[T]he 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."[51] City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984). That principle applies in the circumstances of this case. …

The Court rejected as "unfounded" the school district's argument that to permit its properties to be used for religious purposes would be an establishment of religion forbidden by the First Amendment. The Court observed:

The showing of this film would not have been during school hours, would not have been sponsored by the school, and would have been open to the public, not just to church members. The [school district's properties] had repeatedly been used by a wide variety of private organizations. Under these circumstances … there would have been no realistic danger that the community would think that the [school district] was endorsing religion or any particular creed, and any benefit to religion or to the church would have been no more than incidental.

The Court also rejected the school district's claim that it had justifiably denied use of its property to a "radical" church for the purpose of proselytizing, since to do otherwise would have led to threats of public unrest and even violence. The Court noted, "There is nothing in the record to support such a justification, which in any event would be difficult to defend as a reason to deny the presentation of a religious point of view about a subject the [school district] otherwise makes open to discussion on [its] property."

Case summaries

A school district opens its facilities for a limited number of specified uses, including "concerts." Several rock concerts (by outside musical groups) are conducted on school property during the current year. A church requests permission to use a public high school auditorium for a concert by a religious group. School officials deny permission on the ground that this would "promote religion." Such a denial would violate the church's constitutional right to free speech according to the Supreme Court's decision in the Lamb's Chapel case.
A school district adopts a policy denying use of its facilities by any community group. A church requests permission to use a public high school auditorium for a religious service. School officials deny permission. Such a denial would be permissible according to the Supreme Court's decision in the Lamb's Chapel case, since the church is not being treated less favorably than other community groups solely on the basis of the religious content of its message.
A school district opens its facilities for a limited number of specified uses, including "civic and cultural" uses. A church requests permission to rent a public high school auditorium for a baccalaureate service for graduating high school students. School officials deny permission on the ground that this would "promote religion." The Court did not address the legality of such a denial in the Lamb's Chapel case. However, an argument could be made that the school officials' actions violate the First Amendment guaranty of free speech based on the following factors: (1) A baccalaureate service is a "civic or cultural" event, and accordingly use of school facilities cannot be denied for such a purpose solely on the basis of the religious content of the speech. (2) If school officials have allowed any religious group to use its facilities in the past, then it would be impermissible to deny use of those same facilities for a baccalaureate service. (3) By creating a limited public forum, public school officials cannot deny access to school facilities solely on the basis of the content of an organization's speech (whether that speech is religious, political, philosophical, or of any other variety). This third argument was not addressed by the Supreme Court in the Lamb's Chapel case, but this does not mean that the Court would not recognize it. Some lower federal courts in fact have recognized this argument. (4) The Court noted in the Lamb's Chapel case that "[a]ccess to a [limited public forum] can be based on subject matter or speaker identity so long as the distinctions drawn are reasonable and viewpoint neutral." An argument could be made that an absolute ban on religious speech does not satisfy this test, particularly if the list of "acceptable" organizations and viewpoints is large. (5) The Court in Lamb's Chapel was impressed with the church's argument that the school district "had opened its property for such a wide variety of communicative purposes that restrictions on communicative uses of the property were subject to the same constitutional limitations as restrictions in traditional public fora such as parks and sidewalks. Hence, its view was that subject-matter or speaker exclusions on district property were required to be justified by a compelling state interest and to be narrowly drawn to achieve that end." While noting that the trial court and appeals court in this case had rejected this argument, the Supreme Court concluded that "[t]he argument has considerable force, for the district's property is heavily used by a wide variety of private organizations. …" (6) In Lamb's Chapel, the Court noted that it had previously ruled, in Widmar v. Vincent,[52] 454 U. S. 263, 271 (1981). that permitting use of public university property for religious services and functions was constitutionally permissible, since the property was open to a wide variety of organizations.
A school district opens its facilities to a wide variety of community groups, and on several occasions has permitted religious groups to use its facilities. A church requests permission to use a public high school auditorium for a one-time religious service. School officials deny permission on the ground that this would "promote religion." Such a denial would violate the church's constitutional right to free speech according to the Supreme Court's decision in the Lamb's Chapel case. In Lamb's Chapel, the Court noted that it had previously ruled, in Widmar v. Vincent,[53] Id. that permitting use of public university property for religious purposes under the university's "open access" policy was constitutionally permissible.

The Supreme Court's Good News Club Case [54] Good News Club v. Milford Central School, 533 U.S. 98 (2001).

The Court concluded that the school had engaged in impermissible viewpoint discrimination. It pointed out that the Good News Club sought "to address a subject otherwise permitted under [the school's rules], the teaching of morals and character, from a religious standpoint." The Court rejected the position that "something that is 'quintessentially religious' or 'decidedly religious in nature' cannot also be characterized properly as the teaching of morals and character development from a particular viewpoint." The Court elaborated: "What matters for purposes of the Free Speech Clause is that we can see no logical difference in kind between the invocation of Christianity by the Club and the invocation of teamwork, loyalty, or patriotism by other associations to provide a foundation for their lessons."

The school insisted that its decision to exclude the Club was required by the First Amendment's Nonestablishment of Religion Clause. The court disagreed, based on the following four considerations:

(1) "In distinguishing between indoctrination that is attributable to the state and indoctrination that is not, [this court has] consistently turned to the principle of neutrality, upholding aid that is offered to a broad range of groups or persons without regard to their religion." The Good News Club "seeks nothing more than to be treated neutrally and given access to speak about the same topics as are other groups."
(2) The "community" would feel no coercive pressure to engage in the Club's activities, since the relevant community would be the parents, not the elementary school children. It is the parents who choose whether their children will attend the Good News Club meetings. Because the children cannot attend without their parents' permission, they cannot be coerced into engaging in the Good News Club's religious activities.
(3) "[W]e have never extended our establishment clause jurisprudence to fore-close private religious conduct during non-school hours merely because it takes place on school premises where elementary school children may be present."
(4) Allowing the Good News Club to meet would not create a misperception by schoolchildren that the school is endorsing religion. "There is no evidence that young children are permitted to loiter outside classrooms after the school day has ended. Surely even young children are aware of events for which their parents must sign permission forms. The meetings were held in a combined high school resource room and middle school special education room, not in an elementary school classroom. The instructors are not schoolteachers. And the children in the group are not all the same age as in the normal classroom setting; their ages range from 6 to 12. In sum, these circumstances simply do not support the theory that small children would perceive endorsement here."
(5) "[E]ven if we were to inquire into the minds of schoolchildren in this case, we cannot say the danger that children would misperceive the endorsement of religion is any greater than the danger that they would perceive a hostility toward the religious viewpoint if the Club were excluded from the public forum. … We cannot operate … under the assumption that any risk that small children would perceive endorsement should counsel in favor of excluding the Club's religious activity. We decline to employ establishment clause jurisprudence using a modified heckler's veto, in which a group's religious activity can be proscribed on the basis of what the youngest members of the audience might misperceive."
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