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Civil Rights – Schools – Establishment Clause – Rental Rates – Religious Groups – Open Forum

Where a Fairfax County school board regulation requires that higher rates for rental of school facilities be charged to religious groups who use the facility on a long-term basis, and the board has applied this regulation to charge an evangelical church five times the regular rental rate charged for its facilities, this regulation violates plaintiff church’s constitutional rights and the board is enjoined from enforcing the regulation.

In the present case, the 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 the county school board to allow virtually anyone to rent its facilities.

The county school board creates an open forum by practice as well since, for example, during the 1991-1992 school year, the school board has allowed approximately 9,000 groups to meet in the 180 school facilities available for such use. Because it is clear that the school board has created an open forum for expression, the church cannot be treated differently from other groups that use the forum simply because of the content of its speech.

This type of content-based regulation which unduly burdens speakers’ free exercise of religious beliefs at a public forum, as is the Fairfax County School Board’s policy, can only be justified by a compelling state interest. The school board and the Attorney General argue to no avail that the “tension” between the Establishment Clause and the Free Exercise Clause provides this compelling interest.

Since the school board’s policy singles out only churches for increased rental payments, this policy violates the Free Speech Clause because such a fee structure is content-based. Charging the escalating rental fee to the church simply because of its religious message is in violation of the First Amendment.

Not only does the school board’s policy fail under the open forum doctrine, but the policy also fails under Establishment Clause analysis. Allowing religious groups to meet in an open forum like any other group and pay the same rent as other groups does not have the “primary effect” of advancing religion. It both allows and promotes the free exchange of ideas and speech. Further, allowing religious groups to meet in an open forum does not “excessively entangle” church with state.

This court finds that the Fairfax County School Board’s policy, Regulation 8420, is violative of the First Amendment, in designating all religious groups for the School Board facilities at a rental rate higher than the rate charged to non-religious community groups. Therefore, the board is enjoined from enforcing the regulation, or any other policy which would charge religious organizations rental rates which are disparate from those charged to non-religious community groups.

Fairfax Covenant Church v. Fairfax County School Board (Hilton) No. 92-743-A, Jan. 22, 1993; USDC at Alexandria, Va.; Jordan W. Lorence for plaintiff; Thomas J. Cawley for defendant. VLW 093-3-036, 15 pp.

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