Fairfax Covenant Church v. FAIRFAX CTY. SCHOOL BD.
| Decision Date | 22 January 1993 |
| Docket Number | Civ. A. No. 92-0743-A. |
| Citation | 811 F. Supp. 1137 |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | FAIRFAX COVENANT CHURCH v. FAIRFAX COUNTY SCHOOL BOARD. |
Jordan Woodard Lorence, Jane Hadro, for plaintiff.
Thomas J. Cawley, Stuart Alan Raphael, Kimberly A. Newman, Hunton & Williams, Fairfax, VA, for defendant.
This matter came before the Court on cross motions for summary judgment on the Plaintiff Fairfax Covenant Church's request for a permanent injunction, declaratory judgment, and for compensatory damages of not less than $235,000 plus interest to reimburse plaintiff for extra rent the church has paid under the policy challenged in this case. A motion for summary judgment is proper if the pleadings, depositions, answers to interrogatories and admissions on file, and affidavits, if any, "show that there is no genuine issue as to any material fact" in dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986)). The parties to this action agree that there are no genuine issues of material fact and that this matter is ripe for determination by this court.
Fairfax Covenant Church is an evangelical Christian church that was established in 1980. The congregation gathers for worship, fellowship and Biblical teaching every Sunday. The Church is currently in its eleventh year of renting Fairfax County School Board's facilities for its meetings. The Church currently rents the auditorium, gymnasium, and some classrooms at West Springfield High School for its weekly Sunday morning service. During the first five years of renting the facilities, it paid the same rate as other no-profit groups. During year six, it paid double the rental rate, during year seven it paid triple, and during year eight it paid four times the rental rate. Since year nine, the Church pays the School Board the "commercial rental rate," which is five times the regular rate, for the use of these facilities. The current rental contract expires in April 1993. The Church alleges that it is currently in its sixth year of being overcharged for rent by the School Board. Over this period of time, the Church has paid approximately $235,000 more in rent than it would have if its meetings did not have religious content.
Defendant Fairfax County School Board allows an array of community groups to rent its facilities during weeknights and weekends. An estimated 9000 groups and individuals met at the approximately 180 school district facilities available for rent during the 1991-92 school year. The School Board's policy is governed by Regulation 8420. Regulation 8420 allows a broad range of community groups to meet in the schools, including youth groups, Fairfax County employee organizations, cultural and civic groups, colleges and universities, state and federal government agencies, private organizations and individuals, and churches. Virtually any group is allowed to rent the Fairfax County School Board's facilities.
Nevertheless, Regulation 8420 treats churches and other religious groups differently than all other organizations. The regulation states that "church/religious groups may be authorized usage after five years of use at increasing rental rates until the full commercial rates become effective in the ninth year of use." Thus, for the first five rental years, churches may rent school facilities at the same rate as all other groups. After five years, only churches pay the increasingly higher rates. In addition, the "Standard Operating Procedure for Community Use of School Facilities — Church/Religious Organizations" requires churches to provide "satisfactory evidence of progress towards the construction or acquisition of a church site is presented to the coordinator." No other rental group is required to make such a showing. Regulation 8420 further provides a chart which states that organizations pay "no fee" for use of the buildings if the "school or the community is the primary beneficiary." This "no fee" provision does not apply to "religious services or religious instructions."
The Fairfax County School Board maintains this policy because it believes the Establishment Clause of the First Amendment mandates that it charge religious groups more rent than other groups on a long-term basis. The School Board argues that to allow church groups to use school facilities on a long-term basis, at a low rental rate, would constitute the establishment of religion. See Harris v. McRae, 448 U.S. 297, 319, 100 S.Ct. 2671, 2689, 65 L.Ed.2d 784 (1980); Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971) .
By relying primarily on Establishment Clause analysis, the School Board ignores the open forum doctrine rationale, which is applicable to the set of facts presently before this Court. The School Board, by its policy of renting school facilities to a broad range of community groups has created an open, or public forum. A government facility becomes an open forum when the government allows it to be "generally open to the public" for a broad range of expressive activities. Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983).
In Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981), which is the modern landmark case dealing with religious groups' access to public education facilities, the Supreme Court ruled that religious speech cannot be barred from a limited public forum simply because it is religious speech. In that case the University of Missouri-Kansas City allowed student groups to meet in campus facilities, but excluded a student evangelical Christian Group from meeting on campus solely because it was a religious organization. The Court held that the university discriminated against the student group and individuals based on 454 U.S. at 269, 102 S.Ct. at 274.
Further, the Court noted that "an open forum ... does not confer any imprimatur of state approval on religious sects and practices." 454 U.S. at 274, 102 S.Ct. at 276; see also Westside Community Schools v. Mergens, 496 U.S. 226, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990) (). In fact, by creating a forum generally open for use by various groups, the Fairfax County School Board does not thereby endorse or promote any of the particular ideas aired there. Undoubtedly, many of the views that are advocated are those with which the School Board desires no association. See Widmar, 454 U.S. at 271 n. 10, 102 S.Ct. at 275 n. 10.
In addition, school facilities may be deemed public forums if school authorities make open by either "policy or practice" those facilities for "indiscriminate use by the general public." Perry, 460 U.S. at 45-46, 103 U.S. at 954-955. In the present case Fairfax County School Board has created an open forum for expression through both policy and practice, and thus this forum for expression is protected by the Free Speech Clause of the First Amendment. The Fairfax County School Board policy envisions use of facilities for a broad array of expressive activities. It explicitly states that it allows youth groups, Fairfax County employee organizations, cultural and civic groups, colleges and universities, churches, state and federal government agencies, and private organizations and individuals to meet in the facilities. Clearly it is the policy of Fairfax County School Board to allow virtually anyone to rent its facilities.
Other courts have found similar policies to create open forums. See Gregoire v. Centennial School Dist., 907 F.2d 1366 (3d Cir.1990) (); Concerned Women for America v. Lafayette County and Oxford, Mississippi Public Library, 883 F.2d 32, 34 (5th Cir.1989) (). Cases have further acknowledged the right of religious speakers to use such forums on equal terms with others. See Widmar, 454 U.S. at 272 n. 12, 102 S.Ct. at 275 n. 12; Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981); Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574 (1948).
Fairfax County School Board creates an open forum by practice as well since, for example, during the 1991-92 school year, the School Board has allowed approximately 9000 groups to meet in the 180 school facilities available for such use. Because it is clear that the Fairfax County School Board has created an open forum for expression, First Covenant Church cannot be treated differently from other groups that use the forum simply because of the content of its speech. See Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440.
To focus only on religious groups who use the School Board's open forum also directly contradicts the recent Supreme Court...
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Fairfax Covenant Church v. Fairfax County School Bd.
...Church, which paid the discriminatory rates, by abridging its freedom of speech and by prohibiting its free exercise of religion 811 F.Supp. 1137. The court, however, refused to impose its ruling retroactively to enable the Church to collect the "overcharges" already paid under the discrimi......