School District Ordered to Pay Damages for Censoring Religious Group

8 05 2007

Filed under: Child Evangelism Fellowship, Anderson County, First Amendment, Church and State

The Fourth Circuit Court of Appeals has ruled that a South Carolina school district contravened a religious group’s First Amendment rights. The court ruled in a unanimous 3-0 opinion, in Child Evangelism Fellowship v. Anderson School District Five, that the school district violated CEF’s constitutional rights by charging the group a fee while allowing other groups to use district facilities at no cost.

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 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. [Full opinion]

Liberty Counsel represents CEF of South Carolina, which sponsors after-school “Good News Clubs” in elementary schools, and pointed out the following:

The Anderson School District has been ordered by a federal appeals court to pay $99,776.74 in attorney’s fees and costs for censoring Child Evangelism Fellowship.

CEF was charged a fee to use school facilities, although the district waived fees whenever deemed “in the best interest of the district.” Fees were waived for the Boy Scouts, Girl Scouts, YMCA, Students Against Destructive Decisions, the local Democratic Party, and a host of other groups, but no waiver was extended to the Good News Clubs. After filing suit, the district changed its policy and sought to “grandfather” free use to the previously authorized groups.

The appeals court ruled the district policy unconstitutional, stating that “government may not bar religious perspectives on otherwise permitted subjects … [and] communities of faith may not be arbitrarily excluded from the protections of the Free Speech Clause … Government need not fear an Establishment Clause violation from allowing religious groups to speak under the same reasonable, viewpoint-neutral terms as other private parties … In sum, speech is not to be selectively permitted or proscribed according to official preference.”

This case represents a significant legal precedent, because it requires speech-restrictive policies to contain clear standards to prevent government officials from engaging in viewpoint discrimination, much like the case law that has developed to govern prior restraints on speech.

Mathew D. Staver, Founder of Liberty Counsel and Dean of Liberty University School of Law, who argued the case on appeal, stated: “This decision marks the end of a three-year battle to preserve Child Evangelism Fellowship’s constitutional rights. The court of appeals hit the bull’s-eye. School officials should take notice. Equal access is the law, and equal access means equal treatment in every respect. Good News Clubs teach respect, morality and character development. Instead of hassling Good News Clubs, schools should embrace the clubs. These clubs make a positive difference in the lives of children.”

ASD5 arguments were full of holes in this case. Mat Staver exposed them in his arguments and the court saw them easily as well. Waiving the fee to other groups ranked on a “best interest” scale doomed ASD5 from the start. And then backpedaling when suit was brought by adopting a new policy that swapped the “best interest” clause for a “long-time customer” clause all but admits guilt.

It should have been obvious to these liberal school officials that waiving the fee to the Democrat Party does not exactly rank as high on the “best interest” scale as the Boy Scouts, the YMCA, and CEF. Staver is right on the mark when he said that CEF and other religious groups teach morality, respect, and values. It should be an easy decision to embrace and promote such groups. Doing so would pay huge dividends in their classrooms, which should be a school district’s primary concern. Apparently ASD5 is more concerned with keeping the Democrat Party happy.

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