Child Evangelism Fellowship of S.C. v. Anderson Sch. Dist. Five, No. 06-1819 (4th Cir. Dec. 15, 2006)
The U.S. Court of Appeals for the Fourth Circuit has ruled that a South Carolina school district violated a religious group’s free speech rights when it denied the group’s request to waive a facilities use fee. Anderson School District Five (ASD5) allowed the local chapter of Child Evangelism Fellowship (CEF) to use district facilities for meetings but denied the group’s request for the fee waiver. District policy allowed free access to three types of groups or for a proposed use deemed in the district’s "best interest." When CEF sued, ASD5 adopted a new policy that eliminated the "best interest" provision and added a waiver for organizations that had long used district facilities. The U.S. district court rejected CEF’s First Amendment challenge, concluding the district had applied the "best interest" provision in a viewpoint-neutral fashion.
The Fourth Circuit reversed, ruling that both old and new policies conferred a level of unfettered discretion on school officials that created a risk of viewpoint discrimination, thereby violating the First Amendment’s free speech protections. Regardless of the type of forum in question—public, nonpublic, or limited public—the ban on viewpoint discrimination is constant, the court noted. The U.S. Supreme Court has ruled that "government may not bar religious perspectives on otherwise permitted subjects," because allowing "the presentation of all views ... except those dealing with the subject matter from a religious standpoint" constitutes viewpoint discrimination, and "administrators may not possess unfettered discretion to burden or ban speech, because ‘without standards governing the exercise of discretion, a government official may decide who may speak and who may not based upon the content of the speech or viewpoint of the speaker.’" While the Supreme Court specifically banned such discretion in traditional public fora, the Fourth Circuit recently held in Child Evangelism Fellowship of Md., Inc. v. Montgomery County Public Schools, 457 F.3d 376 (4th Cir. 2006), that the "risks of unbridled discretion ‘are just as present in other forums.’"
The court determined that the forum in question was the fee waiver system, and neither party had questioned the lower court’s holding that limited public forum standards governed the case. Applying those standards, the appeals court concluded the old policy could not be squared with the prohibition on unfettered discretion, because the language allowing administrators to use their judgment as to "best interest" lacked the "narrow, objective, and definite standards" needed to ensure viewpoint neutrality. The policy was "a virtual prescription for unconstitutional decision making, and permits officials to regulate speech ‘guided only by their own ideas’ of what constitutes the good of the community." The court rejected ASD5’s argument that its well-established practice satisfied viewpoint neutrality. While "administrators may have chosen to grant ‘best interest’ waivers only to longstanding users, there is no indication that they believed their authority to be narrower than the policy’s terms indicated," and "whether an administrator possesses excessive discretion under the First Amendment depends ‘not on whether the administrator has exercised his discretion in a content-based manner, but whether there is anything ... preventing him from doing so.’"
The court also found the language authorizing free access by "school organizations" problematic; while the term was "more susceptible to concrete definition than ‘best interest,’" neither policy nor practice provided the "narrow, objective, and definite standards" required. The court therefore rejected ASD5’s contention that the constitutional infirmity was cured when the "best interest" waiver was eliminated. School administrators still had total control over which groups qualified for the "school organizations" category, and the grandfathering provision essentially incorporated by reference the "best interest" determination, allowing continued waivers for groups that fit that designation under the old policy while denying them to CEF.
Child Evangelism Fellowship of S.C. v. Anderson Sch. Dist. Five, No. 06-1819 (4th Cir. Dec. 15, 2006)
[Full opinion]
[Editor’s Note: A summary of the district court’s opinion detailing the facts of the dispute is at the first link below. The Fourth Circuit’s earlier ruling, which struck down a school board policy that it found gave school administrators unfettered discretion to accept or reject CEF’s promotional materials for distribution by teachers, is summarized at the second link. One consequence of that decision is a controversy over a school’s recent distribution of flyers promoting a pagan ritual; see the third link.]
[NSBA School Law pages on Child Evangelism Fellowship of S.C. v. Anderson Sch. Dist. 5]
[NSBA School Law pages on Child Evangelism Fellowship of Md. v. Montgomery County Public Schools]
[NSBA School Law pages on pagan flyers]