Federal appeals court upholds school district’s exclusion of religious group

Wednesday, March 15, 2000

A second federal appeals court has found that a public school district can constitutionally bar religious groups from using its facilities.

Late last week, a three-judge panel of the 5th U.S. Circuit Court of Appeals ruled in Campbell v. St. Tammany’s School Board that a Louisiana school district’s policy forbidding religious groups from using school grounds for worship or religious teaching is constitutional. In 1997, the 2nd Circuit found a similar New York public school policy constitutional.

Both decisions appear to contravene U.S. Supreme Court precedent, which holds that once a government entity, such as a public school, creates a forum open to secular groups, it cannot exclude groups with religious viewpoints.

In 1998, the Louisiana chapter of Pat Robertson’s Christian Coalition asked the St. Tammany Parish School Board if it could use a public elementary school for a “prayer meeting.” The group sought to use the meeting to worship through prayer and music and to discuss family and political issues. The school board denied the group’s request.

Represented by the American Center for Law and Justice, which was also founded by Robertson, the Christian Coalition sued the school board and district arguing that the district’s policy subverted its members’ free-speech and religious-liberty rights. Last August, a federal judge ruled that school officials could not enforce the policy because it was too vague.

On March 9, a three-judge panel of the 5th Circuit unanimously reversed the lower court’s ruling.

Judge Patrick E. Higginbotham, writing for the 5th Circuit, said the district’s policy was not unconstitutionally vague.

“As a facial challenge, we fail to see how the terms ‘religious instruction’ and ‘religious worship’ would provoke confusion amounting to unconstitutional vagueness,” Higginbotham wrote. “There is a clear core meaning. The terms have common meaning such that people can use them without particular difficulty. While the language might be subject to ambiguity at the margins — for example, the line between instruction and discussion may blur at the edges — that effect is no more than the limits of language stretched by the active imagination of hypothesized application.”

The court then determined that the district policy, as enforced by school officials, did not subvert the free-speech or religious liberties of the Christian Coalition members.

Citing the 2nd Circuit’s holding in Bronx Household v. Community School District, the 5th Circuit panel found that the St. Tammany district’s policy amounted to creating a limited public forum, not a traditional public forum in which a government entity would have a much stricter constitutional test to meet before it could exclude some speech. When government officials set up a limited public forum, their limits on speech “must reasonably relate to the purposes of the forum and may discriminate only on the basis of content, not viewpoint,” the 5th Circuit panel noted.

In its case, the 5th Circuit found that the district’s policy did not discriminate against the Christian Coalition’s viewpoints, but merely excluded all religious worship or instruction on school grounds. The court said that “religious services and instruction are not simply approaches to a topic, but activities whose primary purpose is to teach and experience the subject of religion. These are activities distinct from a topical discussion, a social gathering, or a political meeting. The District has excluded such religious activities but does not forbid speakers on general topics with a religious perspective — a distinction that viewpoint neutrality permits.”

Jordan Lorence, an attorney specializing in religious-liberty issues and general counsel for the conservative, Virginia-based Northstar Legal Center, said the 5th and 2nd Circuits were “rebelling against” equal-access standards set by the U.S. Supreme Court.

In 1981, the high court in Widmar v. Vincent invalidated the University of Missouri’s policy barring use of the state school’s buildings or grounds “for purposes of religious worship or religious teaching.” Justice Lewis Powell, writing for the majority, said the university policy “discriminated against student groups and speakers based on their desire to use a generally open forum to engage in religious worship and discussion,” which “are forms of speech and association protected by the First Amendment.”

In Widmar, state officials argued that the building-use policy was needed to prevent the state from violating the establishment clause of the First Amendment. Although recognizing the university’s interest in complying with constitutional mandates, the high court said the question was not “whether the creation of a religious forum would violate the establishment clause” but whether the university can exclude groups from a public forum “because of the content of their speech.”

More than 10 years later, the high court applied its Widmar reasoning and ruled that a New York school district’s denial of an evangelical group’s request to use school grounds to show a film series on child rearing violated the group’s fundamental rights.

Justice Byron White, writing for the majority in Lamb’s Chapel v. Center Moriches School District, said “the showing of this film series would not have been during school hours, would not have been sponsored by the school, and would not have been open to the public, just to church members. The District property had been used by a wide variety of private organizations. Under these circumstances, as in Widmar, there would have been [no realistic danger] that the community would [think that the District was endorsing religion or any particular creed] and any benefit to religion or to the Church would have been no more than incidental.”

Lorence said he was troubled “that two federal appeals courts have upheld such arbitrary and targeted exclusions of religious expression.” He said that “religious speech is not like asbestos in the ceiling tiles of the school, so that it must be removed.”

Stuart Roth, the senior ACLJ attorney who is handling the case for the Louisiana Christian Coalition, said his group was contemplating how to address the 5th Circuit decision. His group can either ask the entire 5th Circuit to review and reverse the panel ruling, or seek a review by the Supreme Court.

“We, of course, cannot allow this ruling to stand,” Roth said. “This decision goes against the free-speech and public-forum jurisprudence that has been established by the Supreme Court and other federal appeals courts.”

Roth added that the school district had permitted a “wide range” of community groups to use its facilities and that “all we want to do is engage in constitutionally protected free- speech activities.”