Unfortunately, two decisions by the U.S. Supreme Court provide for the use of public school buildings by churches, religious and political groups on a viewpoint-neutral basis, if the public school districts are already renting their facilities after hours to other community groups. The subsidy involved in use of public schools by religious organizations, however, continues to create concern, confusion, and litigation. The law on the limits of church use is not completely settled. While schools are not permitted to discriminate against religious groups because they are religious, schools can create regulations that impact church use of school buildings (see Bronx Household of Faith v. Board of Educ. of City of New York below). One appellate court, the 2nd Circuit, ruled in 2011 that a school board’s prohibition of hosting a particular type of activity, religious worship services, was constitutional.
Since public school districts often have the least expensive rental rates available in a community, rental to churches often involves what many of us consider taxpayer subsidy of congregations. Start-up churches often take advantage of low school rental to establish themselves. They obtain a prominent site for a new church, collect church donations on public property, and use their savings to eventually buy their own tax-free buildings. No wonder many taxpayers are concerned!
School districts would be wise to set appropriate limits regarding the use of school facilities. Many school buildings are not used for school events on Sundays, making it costly to continue to heat, cool, and to have custodial staff maintain the buildings on behalf of renters. In such instances, schools could choose not to rent on Sundays or weekends, so long as it is uniformly enforced. Alternatively, school districts may select the types of activities that will be allowed, including limiting building use to school-sponsored events, or excluding religious worship services. Any rules should be applicable to all groups, regardless of a group’s viewpoint.
If you notice church signs and gatherings at your local public schools, here are some steps you can take to monitor the situation:
1. Examine the contract.
Ask the school district for a copy of the contract. (Call the superintendent’s office, not the principal.) School district rental contracts are public information. A school district may ask that you to put your request in writing or e-mail. The district may ask you to pay for or reimburse the District if they mail you a copy. But they cannot deny you this public information.
2. Verify payment.
Once you have reviewed the rent contract, ask for verification that rent has been paid up to date. FFRF once uncovered a rental situation in which the church was in arrears by thousands of dollars and had not paid rent for most of the year, yet the school district had extended a new contract to this church. FFRF made headlines when it uncovered the money owed to taxpayers, and the church paid up!
3. Verify that rent is reasonable.
When you ask for the contract, also ask for a copy of the school district’s rental rate schedule. (The rate schedule may even be online at the district’s website.) Rental rates likewise are public information. Compare what the church is being charged with the rates assessed other groups. Churches and religious groups should not be receiving a preferred rate (although they may qualify for a nonprofit rate). Many districts are adopting a sliding scale, in which they charge the least to groups directly serving school-age children and the most to community groups serving an adult population. Churches renting schools on weekends fall into the latter category.
Take a thorough look at the rents charged for use of classrooms, auditorium, etc. Some churches virtually take over public schools on Sunday mornings, even using the pool for baptisms! We have had complaints from teachers about diapers left in classrooms.
Rent should be reasonable and cover space, equipment, janitorial overtime, AC, and heat. Otherwise it amounts to taxpayer subsidy of worship, which could be prohibited by state constitutions. If the rates for rentals in general seem inadequate to you, take this up with your local school board. Schools are always hurting for money so rentals should bring in revenue.
4. Monitor kiosks or signs.
Large church signs, posters and kiosks are often planted prominently by major entrances of public schools on Sunday morning or during the church services. If the school policy allows all rental groups this privilege, there may not be much you can do except lobby to bar any such signage. But these signs should be informational only, and they should only stay up during the actual period of rental. FFRF has taken complaints about signs staying up all week (and all year). If this is happening in your community, complain! Also: prayer books, crosses and other religious paraphernalia should not remain on school property or be stored at the school.
Churches renting public school facilities often advertise their services in the newspapers and in community flyers, using the name and address of a public school. This gives the impression to the reasonable onlooker that the public schools themselves are involved. FFRF believes that wise public school districts will require all renters to carry disclaimers on ads, flyers and other information advertising their public school meeting location. Disclaimers may note that public school property is being rented after-hours and that this rental carries no endorsement by the school district.
How FFRF can help. If a church is receiving preferential treatment, this amounts to taxpayer subsidy of a church or religious group. If you want FFRF to complain, send a clear e-mail, letter or fax to us describing the situation and detailing the name and address of the school where the church is meeting, as well as the name and address of the Superintendent (and title of the school district). It’s helpful to know as much background information as possible, such as how long this has been going on and any information listed above.
If you complain about a church kiosk being left on school property beyond the rental time and cannot get the district to halt the abuse, you may contact FFRF for backup help.
STATE OF THE LAW ON CHURCHES AND RELIGIOUS GROUPS MEETING IN PUBLIC SCHOOLS
The Supreme Court has found that it is constitutional for a school district to allow religious groups to use school property for meetings during non-instructional hours if the school district’s policy allows other community groups to use its facilities. Both decisions involved rental of public schools by religious groups. Once a school district has adopted such a policy, it generally creates a “limited public forum.” This means that the government may still regulate speech occurring on its property; however, the government’s restrictions on speech in these types of forums must be made on a viewpoint neutral basis. It should also be noted, that school districts may restrict all outside groups from using school facilities. Certainly, the school district can restrict the use of its property to only school-sponsored events and/or activities.
The use of public schools for religious purposes is so divisive and creates such an appearance of entanglement that it continues to be litigated. For example, the Second Circuit Court of Appeals ruled in 2011 that a school board’s refusal to allow school property for “religious worship” was permissible. Bronx Household of Faith v. Board of Educ. of City of New York, 650 F.3d 30 (2nd Cir. 2011). Wrote the appeals court:
“The performance of worship services is a core event in organized religion. . . . Religious worship services are conducted according to the rules dictated by the particular religious establishment and are generally performed by an officiant of the church or religion. When worship services are performed in a place, the nature of the site changes. The site is no longer simply a room in a school being used temporarily for some activity. The church has made the school the place for the performance of its rites, and might well appear to have established itself there. The place has, at least for a time, become the church." Id. At 41.
The Court also ruled:
“The Board could also reasonably worry that the regular, long-term conversion of schools into state-subsidized churches on Sundays would violate the Establishment Clause by reason of public perception of endorsement. . . . The possibility of perceived endorsement is made particularly acute by the fact that [public] schools used by churches are attended by young and impressionable students, who might easily mistake the consequences of a neutral policy for endorsement." Id. At 42. (By the time of the decision, the church had been meeting in the school without paying rent for nearly nine years)
The Supreme Court let the decision stand, denying certiorari without an opinion. Bronx Household of Faith v. New York City Bd. of Educ., No. 11-386, 2011 WL 4479210 (U.S., 2011).
Although the court did not rule that it was unconstitutional for a religious group to rent a public school, the court did decide that public schools could constitutionally prohibit “worship services” on school grounds. This case allows schools to refuse to rent to churches for the purpose of holding church services at the school.
The two Supreme Court decisions and how they relate to Bronx Household—Lamb’s Chapel v. Center Moriches Union Free School District and Good News Club v. Milford—are discussed in further detail below.
Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993)
In this case, a New York school district adopted a policy, which allowed outside community groups to use its premises for “social, civic, or recreational” purposes, but expressly prohibited use for “religious” purposes. Pursuant to this policy, the school district had twice denied an application by Lamb’s Chapel, an evangelical church, to use the district’s facilities in the evening, after school hours, to show a film series concerning family and child-rearing issues from a Christian perspective.
The Supreme Court held unanimously that a school district cannot deny religious groups access to its facilities for use after school hours, i.e., during evenings and on the weekends, if the school district allows other community groups to use them. Even when the school district opens its doors to outside community groups, the Court recognized the school district can still control access to its property. It stated that a school district can still “legally preserve the property under its control for the use to which it is dedicated.” Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 390 (1993). The Court further noted that the school district “need not have permitted after-hours use of its property” at all. Id. at 391.
However, because the school did open its property to various community groups, the Court held that the school district could not then “discriminate” based on the content of the speech, even in the interests of upholding the separation between church and state. Specifically, the Court stated, “control over access to a nonpublic forum can be based on subject matter and speaker identity so long as distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.” Id. at 392-3.
The Court also addressed the Establishment Clause issue. The Court ultimately rejected the notion that permitting the church to use the school after hours would violate the Establishment Clause. It stated specifically that because the film showing “would not have been during school hours, would not have been sponsored by the school, and would have been open to the public, and not just church members” the Establishment Clause was not violated. Id. at 395. When these circumstances exist, there is no “realistic danger that the community would think that the district was endorsing religion.”Id. at 395.
Good News Cub v. Milford Central School, 533 U.S. 98 (2001)
This case again involved a New York school district policy that allowed public schools to rent out school premises for public use. Specifically, the policy allowed residents to use a school for “instruction in any branch of education, learning or the arts” or “social, civic, and recreational meetings.” The Good News Club, a subdivision of the Child Evangelism Fellowship, requested to use a school for its weekly after-school meetings, seeking to rent classrooms directly after the bell rang at the end of the school day. The purpose of these after-school clubs is described on the Child Evangelism Fellowship’s website as follows: “As with all CEF ministries, the purpose of after-school Good News Clubs is to evangelize boys and girls with the Gospel of the Lord Jesus Christ and establish (disciple) them in the Word of God and in a local church for Christian living.” Its mission statement: "Child Evangelism Fellowship (CEF) is a Bible-centered, worldwide organization that is dedicated to seeing every child reached with the Gospel of the Lord Jesus Christ, discipled [sic] and established in a local church." It claims that annually "ten million children worldwide heard the good news with over one million making professions of faith in the Lord Jesus Christ," including through courses designed to meet in public schools.
The Supreme Court, in a 6-3 decision, held that the school district’s action violated the Free Speech Clause of the First Amendment. Noting that the parties agreed the school district created a limited public forum, the Court stated that any restriction on speech had to be viewpoint neutral. In the Court’s language, “When the State establishes a limited public forum, the State is not required to and does not allow persons to engage in every type of speech.” Good News Club v. Milford Central Sch., 533 U.S. 98, 106 (2001). However, “the restriction must not discriminate against speech on the basis of viewpoint, and the restriction must be ‘reasonable in light of the purpose served by the forum.’” Id. at 106-7. The Court held that in refusing to allow Good News Club to meet directly after class, the school district engaged in viewpoint discrimination. The Court claimed that the facts of this case were virtually indistinguishable from Lamb’s Chapel. The Court stated, “Like the church inLamb’s Chapel, the Club seeks to address a subject otherwise permitted under the rule, the teaching of morals and character from a religious standpoint.” Id. at 109. It stated, “The only apparent difference between the activity of Lamb’s Chapel and the activities of the Good News Club is that the Club chooses to teach moral lessons from a Christian perspective through live storytelling and prayer, whereas Lamb’s Chapel taught lessons through films.” Id. at 109-10. The Court’s majority even suggested that the Good News Club teaches morals and character development to children because the “Club instructs children to overcome feelings of jealousy, to treat others well regardless of how they treat the children, and to be obedient, even if it does so in a nonsecular way.” Id. at 108. Additionally, the majority, in a footnote, concluded that the activities did not amount to religious worship. Id. at 112, n.4.
The Supreme Court held that allowing the Good News Club to meet on school property did not violate the Establishment Clause. It reiterated that because the meetings were held after school hours, were not sponsored by the school and were open to any student with parental consent, and not just Club members, that the Establishment Clause was not violated. Id. at 113.
The “good news” is that three justices dissented in this case. Justice Stevens argued in his dissenting opinion that, while he agreed that schools operating a limited public forum could not exclude speech from religious point of view, it could discriminate against religious speech that seeks to proselytize school children. Id. at 133-4. Therefore, Stevens concluded that the school district actions did not abridge free speech.
Additionally, Justice Souter (joined by Justice Ginsburg) argued that the school district was correct in excluding the Good News Club. Souter stated, “It is beyond question that Good News intends to use the public school premises not for the mere discussion of a subject from a particular, Christian point of view, but for an evangelical service of worship calling children to commit themselves in an act of Christian conversion.” Id. at 138. Souter also dissented from the majority’s decision to address the Establishment Clause issue when the lower courts did not. Id. at 139. Souter would have remanded that issue to gain a more complete record.
Souter also stated that the school district’s actions “would offend the Establishment Clause if they carried the message of endorsing religions under the circumstances, as viewed by a reasonable observer.” Id. at 141. Souter rejected the majority’s assertion that the case was indistinguishable from Lamb’s Chapel and other previous cases because this case involved “elementary school children as young as six.” Id. at 143. Souter continued, “The timing and the format of the Good News’s gatherings ... may well affirmatively suggest the imprimatur of officialdom in the minds of young children.” Id. at 144. Souter concluded that the facts before the Court pointed away from the majority’s conclusion that the Establishment Clause would not be violated if Good News Club was allowed to meet on school property. Id. at 145.
The key issue is whether or not the regulation amounts to viewpoint discrimination or content-based exclusion. In Bronx Household, the court said that content-based exclusion was acceptable; the court did not find the ban on worship services to be viewpoint discrimination. In Lamb’s Chapel, the school was banning the movies based on the particular views expressed therein – the Court found this to be unlawful viewpoint discrimination.
The Bronx Household court put it like this:
“There is an important difference between excluding the conduct of an event or activity that includes expression of a point of view, and excluding the expression of that point of view. . . . schools may exclude from their facilities all sorts of activities, such as martial arts matches, livestock shows, and horseback riding, even though, by participating in and viewing such events, participants and spectators may express their love of them. The basis for the lawful exclusion of such activities is not viewpoint discrimination, but rather the objective of avoiding either harm to persons or property, or liability, or a mess, which those activities may produce. We think it beyond dispute that a school's decision to exclude martial arts matches would be lawful notwithstanding the honest claim of would-be participants that, through participating in the matches, they express their love of the sport and their character. The exclusion would nonetheless not represent viewpoint discrimination. While a school may prohibit the use of its facilities for such activities for valid reasons, it may not selectively exclude meetings that would celebrate martial arts, cow breeding, or horseback riding, because that would be viewpoint discrimination. When there exists a reasonable basis for excluding a type of activity or event in order to preserve the purposes of the forum, such content-based exclusion survives First Amendment challenge notwithstanding that participants might use the event to express their celebration of the activity.” 37-38
FFRF's position is that Good News was a travesty. This global Christian evangelical ministry self-avowedly dedicated to converting youngsters should not be granted access to a captive audience of elementary school-aged children. Public schools exist to educate, and should not be turned into tax-subsidized recruitment grounds for predatory proselytizers. Public schools should not be conduits for preachers, forced to distribute Good News flyers advertising clubs, monitor parental consent forms or turnover classrooms directly after school to missionaries. Among the numerous complaints FFRF has received from parents about such clubs and successfully acted on: Teachers who, as soon as the bell rings, take off their public employee "cap" and become child evangelism instructors in the same setting; teachers personally escorting kindergartners to classrooms to attend after-school child evangelism clubs; child evangelism instructors entering schools before the bell has rung and parading through halls with trays of cupcakes to entice children to stay after; flyers advertising the clubs placed at child-eye level by water fountains and other school areas, and public-supported bus schedules being altered to arrive an hour later (stranding students who do not attend the club). FFRF continues to monitor abuses and take action on behalf of complainants.
Last Updated January 2012