Child Evangelism Fellowship of South Carolina v. Anderson School District 5, No. 04-1866 (D. S.C. July 7, 2006)

A South Carolina federal district court has ruled that a school district did not violate an outside religious group’s constitutional rights by refusing to waive its facilities usage fee. Child Evangelism Fellowship (CEF) is a nonprofit religious organization that operates the Good News Club (GNC), a nondenominational club open to elementary school children. CEF’s local chapter contacted Anderson School District 5’s (ASD5) superintendent Betty Bagley, requesting permission to use ASD5 facilities for GNC meetings. Ms. Bagley informed CEF that in order to approval to use the facilities, it would have to comply with the procedures contained in district policy KG. She also said that based on a preliminary review she believed CEF’s application would be approved. Pursuant to policy KG, CEF requested a waiver of the facilities use fees. Policy KG provided for free access to three groups: (1) district schools and school-related organizations; (2) organizations involved in a "joint business/education partnership" with the school district; and (3) governmental bodies and agencies, provided the building is normally opened and staffed, no educational program is disrupted, and no special custodial service is required. The policy also allowed the district to waive the fee if the use of the facilities would be in the district’s "best interests." Although ASD5 approved CEF’s facilities use, it denied the request for waiver of the fees. CEF sued.
       After the lawsuit was filed, ASD5 replaced policy KG with a new policy KF, which retained much of the same language but added a waiver of fees for organizations that began using facilities before fees were charged for such uses and for organizations that have been using the facilities for at least 20 years. The new policy also eliminated the "best interests" provision. CEF’s lawsuit claimed that the policies: (1) violated CEF’s Fourteenth Amendment right to equal protection; (2) violated CEF’s First Amendment free speech rights by engaging in viewpoint-based, content-based or speaker-based discrimination; (3) violated the Establishment Clause and Free Exercise of Religion Clause by discriminating against religious speech; (4) were unconstitutionally vague; and (5) constituted unconstitutional prior restraint on speech. Before addressing the merits of these claims, the court considered whether the suit should be dismissed on the basis of Eleventh Amendment immunity, standing, or mootness. Relying on the test established in Mount Healthy City School District v. Doyle, 429 U.S. 274 (1977), the court concluded the school district is not an arm of the state and is not immune under the Eleventh Amendment. It also disposed of the standing and mootness arguments, finding that CEF had suffered an injury in the non-waiver of the fees and that the replacement of policy KG with policy KF did not render CEF’s claims moot, because the group was challenging both policies.
       Turning to the equal protection claim, the court first rejected CEF’s argument that ASD5 had distinguished between CEF and groups that had received fee waivers on the basis of religion. The court also rejected CEF’s claim that ASD5 lacked any rational basis for distinguishing between CEF and school organizations, the Scouts, or the YMCA. The difference in treatment between CEF and these organizations easily passed the rational basis test, because these groups were either partnered with schools in providing curriculum-related programs or had been using the facilities for over 20 years in reliance on school district practice. The reliance interest justified the different treatment between the Scouts and CEF, the court concluded.
       The court went on to reject the free speech viewpoint discrimination claim, concluding that neither policy KG nor KF discriminated on its face, or as applied, against CEF on the basis of viewpoint. Organizations that received fee waivers did so on the basis of either their status as school-sponsored groups or their having used facilities for at least 20 years. CEF was free to, but had not, applied for status as a school-sponsored organization. School-sponsored status is a viewpoint-neutral, status-based classification, the court concluded. The court determined that the forum in question is a limited public forum, which allows the school district to limit access to forum to certain groups or certain topics. The forum’s purpose, "to provide facilities for schools primarily and allow open access to community nonprofit groups to the extent possible," is reasonable, the court found.
       The court next rejected the Establishment Clause claim, finding that the policies treated religion neutrally and that ASD5’s purpose was not to advance or inhibit religion. The court likewise rejected the free exercise claim on the grounds that ASD5’s purpose was not to suppress CEF’s religious speech and the policies were of general applicability and had only an incidental effect on CEF. Turning to the vagueness claim, while the court conceded that policy KG’s "best interests" provision was a close call, it pointed out that there was no allegation that CEF had refrained from any speech out of concern over this vague policy and no evidence that ASD5 had imposed any sanctions under it. The current policy KF, moreover, had cured any vagueness issue by eliminating the "best interests" provision. Finally, the court rejected the prior restraint claim, stating, "Although there was a potential risk of delay under policy KG given the discretion permitted under the policy, there is no evidence that the District ever delayed in deciding a fee waiver request and policy KG is no longer operative. For all of these reasons, the court finds that CEF has not shown that there is a substantial risk that the District will use policy KF to suppress any group’s right to free speech."