Wallace v. Washoe County School Dist.

• Decision Date: 09 December 1991
• Docket Number: No. CV-N-88-302-BRT,CV-N-88-302-BRT
• Citation: 818 F. Supp. 1346
• Parties: Jim WALLACE, Pastor, and Northgate Community Church, Plaintiffs, v. WASHOE COUNTY SCHOOL DISTRICT, Defendant.
• Court: U.S. District Court — District of Nevada

818 F. Supp. 1346

Jim WALLACE, Pastor, and Northgate Community Church, Plaintiffs, v. WASHOE COUNTY SCHOOL DISTRICT, Defendant.

Nos. CV-N-88-302-BRT, CV-N-88-302-PMP.

United States District Court, D. Nevada.

December 9, 1991.

COPYRIGHT MATERIAL OMITTED

Timothy P. Post, Reno, NV, for plaintiffs.

C. Robert Cox, Paul J. Anderson, Walther, Key, Maupin, Oats, Cox Lee & Klaich, Reno, NV, for defendant.

ORDER ON SUMMARY JUDGMENT MOTIONS

BRUCE R. THOMPSON, District Judge.

This case presents a conflict between the free speech and establishment of religion clauses of the First Amendment. Plaintiffs, Northgate Community Church ("Northgate") and its pastor, Jim Wallace ("Wallace"), have applied to use the facilities at McQueen High School for Sunday worship services. Defendant Washoe County School District ("WCSD") denied the application because the plaintiffs' requested use is of a religious nature. Plaintiffs argue that denying Northgate use of a public high school building during non-school hours is unconstitutional content-based regulation of protected speech. WCSD argues that to permit the church to use the public school facilities for religious worship would constitute an impermissible establishment of religion and would violate the Constitutions of the United States and Nevada, state statutes and school district regulations.¹ The case is before us on cross-motions for summary judgment.

BACKGROUND

Northgate, an unincorporated association with approximately 200 members, is located in Reno, Nevada. WCSD is a public school district created under the laws of the State of Nevada. WCSD oversees the administration of the public schools in Washoe County, including McQueen High School ("McQueen") in Reno.

In September 1987, Pastor Wallace first inquired about renting facilities at McQueen for Sunday services. Ron Pagni, McQueen's vice-principal, advised Wallace that WCSD did not allow the use of school property for religious purposes. Wallace then spoke to the Director of Student Activities, who confirmed this policy. According to WCSD, Administrative Regulation 1330 prohibits community groups from using school facilities for religious purposes, although other uses are permitted.

Plaintiffs' counsel then wrote to Dr. Marvin Moss, WCSD's superintendent, and asked that WCSD revise its policy to permit plaintiffs to use the facilities on an appropriate basis. When WCSD failed to respond, plaintiffs filed a complaint for declaratory and injunctive relief pursuant to 42 U.S.C. section 1983 and a motion for preliminary injunction. Plaintiffs seek: 1) a declaration that WCSD Administrative Regulation 1330 is unconstitutional and unenforceable; 2) an order requiring WCSD to allow use of the McQueen High School facilities by plaintiffs; 3) an order prohibiting WCSD from discriminating against the use of WCSD facilities by religious groups in non-school hours; and 4) an order prohibiting WCSD from closing the "open forum" created by Administrative Regulation 1330.

On July 14, 1988, the parties filed a stipulation that if Wallace were to formally apply to use McQueen for religious purposes, WCSD would deny the application. The stipulation states, in part:

(3) that Plaintiffs were denied the use of the McQueen High School facility because they wanted to use that facility for a religious purpose, which Defendant believes is barred by the Nevada constitution, state statutes and other authorities; and

(4) that although Defendant's Administrative regulation 1330, which has been in effect since May 27, 1986, does not contain any reference to a bar on uses for religious purposes, Defendant's foregoing interpretation of Nevada law and other authorities excludes any use of its facilities for religious purposes.

On August 26, 1988, the United States District Court for the District of Nevada, Judge Howard D. McKibben presiding, conducted a hearing on Northgate's motion for preliminary injunction. Judge McKibben, relying primarily on indications that Northgate would become permanently institutionalized at McQueen, denied the motion.

In December 1988, plaintiffs moved for reconsideration. Attached to the motion was an affidavit by Wallace stating that his church had no desire to use McQueen on a permanent basis. The affidavit further stated that Wallace believed that submitting a written application to WCSD would be futile based on his conversations with school officials. Judge McKibben denied the motion without prejudice to renew in the event that plaintiffs filed a written application with WCSD setting forth the intended use.

On March 28, 1990, Wallace submitted a written application for a one-time use of McQueen for Easter Sunday services on April 15, 1990. According to WCSD, this application was approved in an attempt to settle the case. Northgate conducted its service as scheduled. Plaintiffs then moved for summary judgment, contending that despite the voluntary aberration from its usual practice, WCSD maintained a policy of content-based discrimination toward religious use. This motion was denied July 30, 1990. WCSD then moved for summary judgment on January 15, 1991, asserting that WCSD Administrative Regulation (Ad.Reg.) 1330 does not create an open forum or, alternatively, that a compelling state interest exists in avoiding violation of the establishment clause and that this state interest justifies excluding Northgate from use of the McQueen facilities. Plaintiffs filed a cross-motion for summary judgment and the issue is now ready for resolution by this court.

DISCUSSION

Rule 56 of the Federal Rules of Civil Procedure provides, in part:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.

Fed.R.Civ.P. 56(c).

The court must first address whether WCSD has, as a matter of law, opened its facilities to expressive activity by the community and, if so, whether the legal characteristics of the forum created by WCSD subject its content-based exclusion of Northgate to a strict scrutiny analysis.

Religious discussion and worship are forms of speech and association protected by the First Amendment. Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981). Therefore, the court must apply a forum analysis to determine whether a particular forum should be categorized as a traditional public forum, a nonpublic forum or a limited public forum. Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985); Perry Educ. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983).

Traditional public fora such as streets and parks are afforded the most extensive constitutional protection. These fora "have immemorially been held in trust for the use of the public and, time out of mind, have been used for the purposes of assembly, communicating thoughts between citizens, and discussing public questions." Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939). Speech and assembly can be censored in such fora "only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest." Cornelius, 473 U.S. at 800, 105 S.Ct. at 3447.

In nonpublic fora such as military bases and prisons, the government may restrict speech and assembly if the restrictions are "reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view." Perry, 460 U.S. at 45, 103 S.Ct. at 955. General access to the nonpublic forum is restricted because the government has the power to limit the property under its control for the use to which it is dedicated. Therefore, granting selective access does not transform government property into a public forum. Id. at 47, 103 S.Ct. at 954-55.

Limited or designated public fora, such as municipal auditoriums and university facilities made available for student groups, can be created by the government intentionally designating a nontraditional public forum for public discourse. Courts look to the policy and practice of the government and examine the nature of the property and its compatibility with expressive activity to discern the government's intent. Cornelius, 473 U.S. at 802, 105 S.Ct. at 3449. While the designation of a limited public forum is revocable, the government is subject to the same "compelling state interest" constraint if speakers within the group to whom access is allowed are to be excluded.

WCSD argues that it has not created an open forum because it excludes all religious uses from its facilities and does not discriminate among religious users. WCSD correctly notes that when a school district creates a limited public forum, the "property remains a nonpublic forum as to all unspecified uses, ... and exclusion of uses — even if based upon subject matter or the speaker's identity — need only be reasonable and view-point-neutral to pass constitutional muster." Lamb's Chapel v. Center Moriches Union Free School District, 770 F.Supp. 91 (E.D.N.Y.1991) (citation omitted). If a school district wishes to exclude a category of speech or speakers, however, access to the forum must be "limited by well-defined standards tied to the nature and function of the forum." Gregoire v. Centennial School District, 907 F.2d 1366, 1371, (3d Cir.), cert. denied, 498 U.S. 899, 111 S.Ct. 253, 112 L.Ed.2d 211 (1990), citing Perry, 460 U.S. at 46-47, 103 S.Ct. at 956.

Here, WCSD's policy in effect from June 1982 — May 1986 provided that "community groups shall be permitted and encouraged to use school facilities for worthwhile purposes provided that: ... the use thereof is not for a religious purpose." WCSD Ad.Reg. 1330. The version of Ad.Reg. 1330 that has been in effect since May 1986 omits the language ...