The Child Evangelism Fellowship of Ohio (CEF) has accused the Cleveland Metropolitan School District of discriminating against it because the district insisted on charging the CEF for the use of district facilities. The CEF wanted to operate a Good News Club for students after school. The district charged its customary rate of $69.50/hour.
But then the CEF found out that the Boy Scouts were using school facilities for free. VIEWPOINT DISCRIMINATION!!
The CEF sought an injunction to force their way into school facilities. The federal district court denied the injunction, and the Circuit Court affirmed that decision.
Can school districts pick and choose what groups can use its facilities? Not entirely. The district does have to play fair. If it makes its facilities available at all, courts are likely to conclude that the district has created a “limited public forum.” If that be the case, the district “may restrict speech….as long as the restrictions ‘do not discriminate against speech on the basis of viewpoint’ and are ‘reasonable in light of the purpose served by the forum.’” Miller v. City of Cincinnati, 622 F.3d 524, 535 (6th Cir. 2010) (quoting Good News Club v. Milford Central School, 533 U.S. 98, 106-07 (2001).
So “viewpoint discrimination” is a legitimate complaint…if the facts are right. The problem for the CEF in this case was that the facts did not support its argument. True, the Boy Scouts were using school facilities without a cash payment. But the district accepted “in-kind” payment from the Scouts that it deemed worthwhile. In like fashion, the district permitted a Christian church to hold its services in a school building in exchange for capital improvements to the building that the church provided.
The court’s decision was not unanimous. One judge dissented by noting that the Boy Scouts so-called in-kind payment did not really benefit the school district. The Scouts were given credit for the supplies, uniforms, camping costs and books that it provided to the participants. These are costs that would normally be borne by the parents—not the district. As the dissenting judge points out, “The District does not explain how payment of these program costs compensates the District for its maintenance and utility expenses—because it does not.”
Good point. So perhaps we have not heard the last of this case.
The case provides a good opportunity for district administrators to review their policies and practices regarding community use of facilities. Take a look at your Policy GKD and make sure that your practices as well as policies can withstand an accusation of viewpoint discrimination.
The case is Child Evangelism Fellowship of Ohio, Inc. v. Cleveland Metropolitan School District, decided by the 6th Circuit Court of Appeals on March 19, 2015.
DAWG BONE: CHECK OUT POLICY GKD. THEN LOOK AT YOUR ACTUAL PRACTICES.