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Phyllis
Errico, Editor
The public school — religion relationship is typically
thought of and analyzed under a First Amendment Establishment
Clause analysis with the concern being the excessive entanglement
between church and state. However, when the issue is the non-school
related use of school facilities, the analysis is one of equal
access and what type of forum exists. Because public schools
are built with public taxpayer funds and because they are
often the focal point of activity in many communities they
are clearly desirable sites for other activities that may
not be related to the public school curriculum and mission.
A common site in the afternoons, evenings and on weekends
is that of community members involved in organized recreational
activities or simply walking, running around a track or using
playground facilities on public school grounds. This raises
a number of issues for the public school systems including
safety and liability issues, wear and tear, and supervision
of the school facilities and grounds. A school board is charged
with proper care of its facilities whose primary purpose is
for the instruction of students. Yet, this primary purpose
is often balanced with the needs and the desires of the community
to use these facilities for other more general community uses.
Often a school is the only facility large enough to accommodate
certain uses. If a public educational system decides to make
its schools and school facilities available to non-school
users a careful analysis must occur in developing policy to
avoid legal challenges to this use. It is important to note
that there is no legal requirement that school facilities
are open to uses other than for public school instructional
and school endorsed extracurricular activities.
Although there is no legal obligation to open school facilities
to other than school use, as a practical matter almost all
school divisions do allow such use. Proponents of non-school
use of facilities point out that the schools and their grounds
and property belong to all the taxpayers, many of whom do
not have school age children but pay the same taxes and thus
should have some benefit for these taxes. Another important
aspect of allowing non-school use of facilities is that it
is desirable to have community support and pride in the public
schools and exposing all citizens to the schools will promote
support for the school system even if those citizens do not
have children attending public schools. This type of use may
also promote support in the form of volunteerism by businesses
and private citizens and may also lead to gifts and donations,
which may enhance the physical plant of the school.
Opponents of non-school use of facilities generally feel
that school property should be used purely for educational
purposes and that any extra use will erode the condition of
the school campus and detract from the primary mission of
the education of children. In addition, when schools are used
by other entities and there is damage, or facilities are not
left in the same condition in which they were found and extra
maintenance costs might be incurred. In fact, it is not unusual
for a school administrator to enter a school building the
day after a non-school event and find that the facility has
not been cleaned properly, or that things are out of place
or missing, or that the building was not properly taken care
of. This damage, loss and extraordinary wear and tear may
occur as frequently outside a school building such as on playing
fields, tennis courts and track facilities.
Another issue related to non-school use of facilities is
that of whether or not to charge a user fee. Again, there
are two schools of thought on this issue. There are citizens
who believe that since they have already paid once for the
building through tax dollars that they should not be charged
for use of a public school or its facilities. Others believe
that because the primary use of schools is to support the
public instructional program any additional use should carry
a fee to pay for the impact of the additional use on these
facilities.
The courts recognize that public educational institutions
and the boards that govern them have wide discretion over
the use of its property and facilities. However, the courts
also acknowledge that use of these facilities must comport
with state law and constitutional considerations as this public
property if made available for other than educational use,
must be made available in a fair, reasonable and nondiscriminatory
manner. In order to determine what is fair, reasonable and
nondiscriminatory the courts look at this issue by creating
a forum analyses. Generally speaking there are three types
of forums for expressive activity recognized by the courts.
This term is used to describe areas generally open and accessible
to the public for most purposes. It includes public streets,
sidewalks and parks. In an open public forum expressive activity
may not be suppressed, controlled or excluded unless it is
necessary to do so to achieve a compelling government interest.
It is important to note that the government may place reasonable
time, place and manner restrictions on this use if they apply
neutrally to similarly situated parties and are narrowly drawn
to achieve the compelling government interest.
This type of forum is described as one, which the government
has opened up for a particular purpose. A school setting most
often fits into this category because it is a public building
whose primary purpose is to provide education to its citizens
but school divisions generally allow access to other entities
when the school is not being used for its primary purpose.
Again, reasonable time, place and manner restrictions may
be imposed but they must be exercised neutrally to similarly
situated parties.
These terms refer to places, which are traditionally not
held open for public communication or expressive activity
such as buildings and areas which are used for business purposes.
In the non-public forum, the government may impose reasonable
content-based restrictions in light of the function and purpose
of the facility. It is not uncommon for a governmental building
to have portions of the facility, which may be considered
limited public forums, such as a meeting room and those that
may be considered a non-public, or closed forum such as the
portion of building that is for internal business use only,
and not generally open to the public.
There are two general categories of cases regarding the non-school
use of school facilities for religious purposes or by religious
groups. There are cases involving student-initiated religious
use and non-student or community initiated religious use.
The former are analyzed under the Equal Access Act standard
and the latter using the above-described forum analysis.
This congressional act which became law in 1984 defines rights
and responsibilities regarding student-initiated speech and
assembly in public secondary schools. Although the Equal Access
Act is primarily discussed in the context of religious activity,
it also governs other types of student initiated activity.
It states in part:
“It shall be unlawful for any public secondary school
which receives Federal financial assistance and which has
a limited open forum to deny equal access or a fair opportunity
to, or to discriminate against, any students who wish to
conduct a meeting within that limited open forum on the
basis of the religious, political, philosophical, or other
content of the speech at such meeting.”
In interpreting the Equal Access Act the Supreme Court in
Board of Education v. Mergens 496 U.S. 226 (1990) held
that if a non-curriculum related student group was allowed
to meet in a public secondary school thus creating a limited
public forum, then equal access would be provided to a religious
group in the same manner. The court went on to explain that
a non-curriculum related group includes any student group
that does not directly relate to the body of courses offered
by the school. The Mergens case illustrates that while
a foreign language club would not trigger the act if that
foreign language were offered as a regular course in the school’s
curriculum a club such as a chess club or a stamp collecting
club would generally trigger the act as these groups are generally
not directly related to the curriculum.
Non-student related use of school facilities for religious
purposes or by religious groups has been the subject of much
litigation. Although most governmental entities including
school boards have been motivated by a desire to avoid First
Amendment Establishment Clause conflicts they have been sued
by religious entities on equal protection, free speech and
other grounds for policies or practices which either preclude
non-school use of facilities by religious groups or treated
religious groups differently than other similarly situated
groups. Because most public schools have created a public
forum by allowing use of school facilities during non-school
hours when it does not interfere with the orderly operation
of the schools, they are governed by the forum analysis in
regards to use by religious organizations or other groups
wishing to use school property for religious purposes.
In the case of Lamb’s Chapel v. Center Moriches Union
Free School District, 508 U.S. 384 (1993), the Supreme
Court held that where an educational institution opens its
facilities to community use, content-based restrictions on
those who seek access is not permitted. In the Lamb’s
Chapel case an evangelical church applied to a local school
board for permission to show a film series whose message was
one of promoting traditional Christian family values. The
school district denied the church’s application to meet
in its facilities based on its rule that a group shall not
use school premises for religious purposes. The schools in
this district had been open for use by other religious groups
in the past; therefore, Lamb’s Chapel felt they should
also have been allowed use for its purposes. The church sued
the school district challenging the denial of its use as a
violation of Freedom of Speech, Freedom of Assembly, the Free
Exercise Clause and the Establishment Clause of the First
Amendment, as well as the Equal Protection Clause of the Fourteenth
Amendment. In ruling in favor of Lamb’s Chapel, the court
held the school district’s rule illegal and explained
that access to school facilities that have been opened for
social or civic use must be viewpoint neutral and it was therefore
unlawful to deny access to such use because a proposed use
is religious in nature.
The issue of non-school use of public school property by
a religious organization has been the subject of litigation
in Virginia in the case of Fairfax Covenant Church v. The
Fairfax County School Board 17F.3d 703 (4th Cir 1994),
a case which was decided shortly after the Supreme Court ruled
in the Lamb’s Chapel case. In the Fairfax Covenant
Church case the church sued the Fairfax County School Board
for violation of the First Amendment because of a policy which
provided for charging churches higher rent than other non-profit
organizations for use of school facilities. This case is interesting
because of the fact that the school board acknowledged its
obligation to allow religious organizations or entities to
lease its public school facilities for religious purposes
because it clearly allowed other community groups such access.
The School Board erred however in the way that it charged
the religious groups differently for their use than they charged
for similar use by other similarly situated users. In this
case, the School Board allowed use of its 172 schools generally
to community and cultural groups after school hours and during
weekends. The School Board policy provided for use by community,
religious and cultural organizations, both commercial and
non-profit under a specific fee schedule. The fee schedule
provided some free use for groups such as governmental agency
groups and Boy Scouts and Girl Scouts, a noncommercial fee
rate for cultural and civic groups and a commercial rate for
private organizations. The noncommercial rate was designed
to reimburse the school system for the actual cost of the
use of the facility and the commercial rate, which was five
times the noncommercial rate, was designed to approximate
market rental rates. The fee schedule provided a special escalating
rate applicable to churches, which allowed a church to pay
the noncommercial rate for the first five years of use, then
an escalating rate towards the commercial rate over the next
four years. The School Board explained that it had a special
provision for churches to encourage them to go elsewhere after
time because of a concern over violating the Establishment
Clause for long-term support of religious activities.
The Fourth Circuit cited the Supreme Court’s Lamb’s
Chapel decision as well as earlier case law in holding
the Fairfax fee schedule unconstitutional as it applied to
religious activities. It pointed out that access to public
school facilities could not be restricted on the basis of
the users’ religious perspective and that the regulation
at issue in the Fairfax case discriminates against religious
speech in violation of the free speech clause of the First
Amendment. The court further held that because the School
Board was unable to articulate a compelling state interest
to justify the special fee schedule for churches, that the
church’s right to free exercise of religion was also
violated. The court further noted that the School Board created
a forum which provides access to all sorts of uses including
religious uses and rather than remedying an Establishment
Clause concern the School Board created a non-neutral anti-religious
posture by burdening free speech and free exercise of religion.
As a practical matter the Equal Access Act issue is one which
must be addressed in most secondary schools today. It is very
unusual at the secondary school level, where clubs and extracurricular
activities are part of the fabric of the public school experience,
to have only school-related clubs. Most middle schools have
clubs that may be tangentially related to the curriculum but
the nexus may not be strong enough to pass Equal Access muster.
This is especially true in public high schools today where
there are student clubs and groups of all types. Because all
public secondary schools receive Federal funding they fall
squarely under the Equal Access Act. Therefore, as a practical
matter most secondary schools must allow student-initiated
religious clubs the same access and opportunities as school-sponsored
clubs. This means that if there is a school period set aside
for clubs, meetings or activities, or a time set aside before
and after school for such activities, then student-initiated
religious clubs must also be allowed to meet.
One of the issues that often arises in the Equal Access context
is the issue of staff involvement in these clubs. It is common
practice to have a faculty sponsor for each club, particularly
in the middle school level. The sponsor usually leads, directs
and ties the club activities to the school curriculum. The
sponsor also provides appropriate supervision of the students
during club time. When the club is a religious club the role
of the staff member must be reduced to a custodial or supervisory
one. For example, a staff member may be the “sponsor”
but the role must be limited to providing adult supervision
and the staff member must refrain from leading, directing
or participating in the religious activity. The reason for
this is that that staff member is acting in the scope of his/her
duties as a public school staff member and any involvement
in the religious activity may be viewed as endorsing the activity
thus resulting in an Establishment Clause violation.
A conflict that may arise in administering the Equal Access
Act is the issue of outside adult involvement with these student
groups. While it might be customary for student groups to
invite guest speakers to their clubs, meetings or activities,
the Equal Access Act should not be interpreted as a means
or a forum for adult-initiated religious activities. This
type of activity should be directed towards non-school use
of facilities because it is not a true student club.
Another issue that arises in the school club context is the
ability to announce club meetings in the school’s announcement
period, the ability to post or distribute fliers of upcoming
events or meetings or the ability to participate in club membership
drives held at the school. To avoid Equal Access Act challenges
a student initiated religious club should have the same rights,
responsibilities and access as all the other student clubs.
If there is a concern about the appearance of school endorsement
a disclaimer may be added to the message being posted, distributed
or otherwise communicated.
As discussed earlier, no public school system is required
to open up its facilities and grounds to any non-school related
use; however, if they do certain implications arise. Almost
all school divisions open their school buildings and grounds
to some non-school use on a regular basis. In fact use of
facilities by groups such as educational foundations, Parent
Teacher Associations, employee organizations and associations
and Boy Scouts and Girl Scouts will generally place the school
in a limited public forum category for First Amendment analyses
purposes. In most school divisions use of school facilities
is addressed by some type of written policy or regulation.
Careful attention and regular review of these policies and
regulations in light of the ongoing litigation in this area
would be highly prudent.
Generally, these policies designate some area of the school
building or grounds available for public use and allow this
use during certain hours, for example, from 3 p.m. until 10
p.m. and on weekends, or more generally at such time when
the building or grounds are determined by the building administrator
to be available for non-school use. Such policies should also
contain provisions for insurance for damage, loss or supervision
issues, provisions which address the users’ responsibilities
and the school division’s responsibilities, any fees
or costs associated with the use of such facilities and any
special provisions including the need for security, custodial,
food service as well as other personnel issues. Many school
divisions have established a fee schedule for the use of school
facilities in order to cover the cost of such use and to protect
the school board’s educational funds from being spent
on non-school costs and expenses.
A crucial element in the use of school facilities that has
given rise to discussion and controversy is the extent of
use allowed. This topic is an issue regardless of whether
a fee is included. Because these policies are examined in
a public forum analysis, it is crucial that similarly situated
entities are treated equally. For example it is not uncommon
to delineate categories of users such as:
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School groups and school-related groups such as employee
groups, student groups, PTAs, boosters, county recreation
use, county agency use and any other use directly related
to the school.
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Other private or public not-for-profit groups such as
colleges, foundations, civic associations, religious organizations
and recreational or educational associations.
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Commercial and for-profit entities such as businesses.
In addition it is common practice to charge some type of
user fee to cover the cost for the use of the facilities such
as custodial staff, utilities required to keep the facility
open or maintenance required as a result of such use.
An important aspect of these policies is that similarly situated
entities are treated fairly and consistently. These policies
and administration of these policies may not discriminate
on the basis of the user or the use. If there is a valid concern
about the frequency and extent of uses, however, the way to
approach this concern is not to deal with the type of use
or the user but look to your policy on length of time and
frequency of use by any particular entity. For example, some
policies allow the facility to be reserved only one month
in advance or limit the number of times any one user may use
a facility in a particular time period. Again, these restrictions
must be neutral and must be applied uniformly to all similarly
situated users.
The issue of religion and use of school facilities is related
to other issues such as the debate about favoring non-profit
community uses of school buildings over use by commercial
entities. Under a traditional non-school use of facilities
policy a church or other non-profit entity may be able to
use a school facility for childcare but a for-profit commercial
entity may not because of their commercial status. Or they
may not be precluded but may pay a different fee for the same
access due to their status as a commercial entity. While this
may not raise constitutional issues it does provide a source
of controversy in the community.
This public forum analysis also gives rise to the issue of
what type of information may be distributed to school children
or staff members. A careful analysis and thoughtful policy
should be developed to provide guidance on this issue of posting
and distribution of literature and other materials.
In dealing with the issue of religion and the use of public
schools for religious purposes or by religious groups, a careful
analysis is required to strike the balance between the various
components of the First Amendment including freedom of speech,
freedom of expression and freedom of association on the one
hand and the establishment clause and avoiding excessive entanglement
between church and state and the establishment of religion
on the other. The issue of neutrality in the application of
use of school facilities is also important in order to avoid
equal protection issues. A board policy that provides open
access but also provides a fair and reasonable fee for such
non-school use of facilities is a good tool to provide the
community with the widest access to school facilities while
avoiding legal challenges and excessive wear on the educational
facilities themselves.
Click here for summary of recent Virginia Legislative history
of “Religion
and Facility Use.”
Whitehead, John N. The Rights of Religious Persons
in Public Education
Horner, Jeff. Access to Educational Facilities for
School and Public Groups
Mawdsley, Ralph D.. Extending Lamb’s Chapel to
After-School Religious Meetings
Schimnel, David. Discrimination Against Viewpoints
Prohibited in Public Schools: An Analysis of the Lamb’s
Chapel Decision.
Horner, Jeff. Access to Educational Facilities for
School and Public Groups, 54 Ed. Law Rep. (West).
Mawdsley, Ralph D. Extending Lamb’s Chapel to
After-School Religious Meetings, 96 Ed. Law Rep. (West).
Schimmel, David. Discrimination Against Religious
Viewpoints Prohibited in Public Schools: An Analysis of the
Lamb’s Chapel Decision, 85 Ed. Law Rep. (West).
Click cepi@vcu.edu to provide
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