Child Evangelism SC v. Anderson School Dist ( 2006 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CHILD EVANGELISM FELLOWSHIP OF 
SOUTH CAROLINA,
Plaintiff-Appellant,
v.  No. 06-1819
ANDERSON SCHOOL DISTRICT FIVE,
Defendant-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Anderson.
Henry M. Herlong, Jr., District Judge.
(8:04-cv-01866-HMH)
Argued: October 24, 2006
Decided: December 15, 2006
Before WILKINSON, WILLIAMS, and MICHAEL, Circuit Judges.
Reversed and remanded by published opinion. Judge Wilkinson wrote
the opinion, in which Judge Williams and Judge Michael joined.
COUNSEL
ARGUED: Mathew D. Staver, LIBERTY COUNSEL, Maitland,
Florida, for Appellant. Kenneth Paul Woodington, DAVIDSON,
MORRISON & LINDEMANN, P.A., Columbia, South Carolina, for
Appellee. ON BRIEF: Erik W. Stanley, LIBERTY COUNSEL,
Lynchburg, Virginia; Anita L. Staver, LIBERTY COUNSEL, Mait-
land, Florida; Samuel D. Harms, Greenville, South Carolina, for
2 CHILD EVANGELISM v. ANDERSON SCHOOL DIST. FIVE
Appellant. David L. Morrison, DAVIDSON, MORRISON & LINDE-
MANN, P.A., Columbia, South Carolina, for Appellee.
OPINION
WILKINSON, Circuit Judge:
The Child Evangelism Fellowship of South Carolina ("CEF") chal-
lenges policies under which it was denied a fee waiver for religious
club meetings that it sought to hold in the facilities of Anderson
School District Five. CEF argues that the school district violated the
First Amendment by permitting school officials to waive fees "as
determined to be in the district’s best interest," among other grounds.
The district court concluded that this language was vague enough to
allow school administrators to violate the First Amendment by treat-
ing speakers differently based upon their views, but found no consti-
tutional problem because it concluded that the school district had not
engaged in viewpoint discrimination. We reverse, because the unfet-
tered discretion conferred by district policy presents such a risk of
viewpoint discrimination as to run afoul of the First Amendment.
I.
Plaintiff Child Evangelism Fellowship of South Carolina is a non-
profit religious organization that has unsuccessfully sought free use
of school facilities in Anderson County, South Carolina. CEF spon-
sors after-school moral and religious instruction through "Good News
Clubs" for children between the ages of five and twelve. The clubs
are non-denominational, free of charge, and open to children regard-
less of their religious backgrounds or beliefs. Activities include sing-
ing hymns, reading stories, memorizing Bible verses, and
participating in Bible lessons. CEF holds club meetings at elementary
schools in order to avoid the logistical and safety problems associated
with transporting young children to off-site locations at the close of
the school day.
The defendant, Anderson School District Five, granted CEF’s
request to hold a Good News Club at Midway Elementary School, but
CHILD EVANGELISM v. ANDERSON SCHOOL DIST. FIVE 3
declined to waive usage fees for CEF under both the policy in effect
at the start of this litigation and a revised policy implemented while
this case was before the district court. CEF first sought access to the
schools when access was governed by "Policy KG." The policy began
with a statement of purpose indicating both a desire for broad com-
munity access and a desire to recoup costs: "The board of trustees rec-
ognizes the capital investment of the community in school property
and desires that buildings and other facilities be used to promote the
general welfare of the community," but "[c]ommunity use of school
facilities cannot be subsidized with district funds."
Policy KG authorized use of school facilities by formally consti-
tuted nonprofit community groups, governmental entities, and for-
profit enterprises providing activities not offered by the school but
"considered a desired part of the school curriculum." The policy
stated that the district would implement a fee schedule "sufficient to
cover personnel and operating expense[s]" but that some users would
be entitled to free access. Fees were waived for "school organiza-
tions," defined to include "[p]arent-teacher organizations/associations,
district organizations, band and athletic booster clubs, SADD, 4-H
clubs, FFA and FHA organizations and other similar organizations."
In addition, the district waived fees for use "as a result of joint busi-
ness/education partnerships" with the district and for "[g]overnmental
bodies or agencies" under most circumstances. The fee provisions
were subject to a best interest catch-all, apparently added to the policy
in 2000: "The district reserves the right to . . . waive any or all
charges as determined to be in the district’s best interest."1
In the 2002-03 and 2003-04 school years, groups that paid for the
use of school facilities included the Anderson County Disabilities and
1
The discretionary language extends to facility access as well as fees.
The policy states that "[t]he district reserves the right to decline any
rental application . . . as determined to be in the district’s best interest"
and that "[t]he school principal must authorize all requests, in advance,
for use of his/her assigned facility." The policy also prohibits "any activ-
ity that may violate the canons of good morals, manners, or taste."
Finally, it states, "The board reserves the right to amend, suspend, or
revoke the provisions of this policy at any time it deems necessary to be
in the best interest of the district and/or the community."
4 CHILD EVANGELISM v. ANDERSON SCHOOL DIST. FIVE
Special Needs Parent Club, a Kiwanis Club, the Miss Anderson USA
Pageant, and a number of churches. The district took in over $40,000
from paying users in the 2003-04 fiscal year, with most receipts com-
ing from church groups, many of which held regular worship services
at the schools.
Other groups, however, were given free access. The district waived
fees under the "best interest" provision for Boy Scout and Girl Scout
troops, as well as the Brownies and the Cub Scouts. School officials
stated in depositions that scouting groups were allowed to meet for
free because they had done so since at least 1975 — even when dis-
trict policies provided for fees but not for "best interest" waivers. The
YMCA also received free use under Policy KG, apparently under the
exception for joint partnerships between private groups and the school
district. Other free users included the Anderson County Democratic
and Republican parties, apparently on the erroneous grounds that the
groups were governmental organizations, and various activities
closely tied to the school curriculum, such as an orchestra booster
club and a spelling bee.
CEF first applied to hold Good News Club meetings at Midway
Elementary School in 2003. CEF asked that any usage fee be waived
on the grounds that it would be "in the best interest of the district" —
the first such formal request that David Brooks, the district’s assistant
superintendent for financial services and operations, could recall
receiving. The district approved CEF’s proposed use, but estimated
that the group would be charged $48.00 per week. Brooks denied
CEF’s request for a fee waiver, citing "the extent and frequency of
your planned use of our facilities."
After CEF’s district director requested reconsideration, Brooks
wrote a second letter explaining the denial. Brooks wrote that while
Policy KG made it possible to "waive any or all charges as deter-
mined to be in the district’s best interest,"
the only organizations that the District waives the charges
for pursuant to this exception are the Boys and Girls Scouts
and the YMCA after school program, which began and still
CHILD EVANGELISM v. ANDERSON SCHOOL DIST. FIVE 5
operates as an invited partnership between the District and
the YMCA. The District has waived fees for these three
groups for many years, apparently since the groups began
using District facilities.
He added, "It is the District’s practice to charge all groups, other than
the long-standing exceptions discussed above, for their usage of its
facilities. Deviating from this practice now would set a precedent that
would likely lead to unnecessary future problems."
CEF began holding weekly Good News Club meetings and paying
usage fees during the 2003-04 school year, but eventually filed this
suit under 42 U.S.C. § 1983 challenging the fees facially and as
applied on First and Fourteenth Amendment grounds. About two
months after CEF filed its complaint, the district replaced Policy KG
with "Policy KF," which eliminated the "best interest" waiver provi-
sion under which CEF had sought free access. Instead, Policy KF
waived fees for groups that began using school facilities "at a time
when fees were not charged for such uses or to organizations or
groups who have made use of the district’s facilities for at least
twenty years." The only groups meeting this definition were the
scouting organizations. The other provisions governing free use by
governmental entities and school organizations remained substan-
tively unchanged.
The school district did not allow CEF free access under the new
policy. CEF continued to use the facilities for part of 2004-05, draw-
ing 27 students to a typical meeting. Eventually, however, CEF
stopped the meetings, having paid the district a total of $1,545 over
two school years. The district court found that cost contributed to
CEF’s decision to stop holding meetings at Midway Elementary
School and prevented CEF from organizing clubs at additional district
schools. 438 F. Supp. 2d 609, 617 (D.S.C. 2006).
After the parties withdrew requests for trial by jury, they submitted
the case to the district court for decision. The district court framed the
issue as one of access to a limited public forum. Id. at 628. It con-
cluded that Policy KG’s "best interest" waiver provision "left a con-
6 CHILD EVANGELISM v. ANDERSON SCHOOL DIST. FIVE
spicuous door open" for school administrators to deny access based
upon viewpoint, contrary to the First Amendment’s requirement that
the government not discriminate against speakers on the basis of their
views. Id. at 627. It also held that Policy KF could allow administra-
tors’ earlier decisions to be perpetuated. Id.Nevertheless, the district court rejected CEF’s First Amendment
challenge, because it concluded that the school district had applied the
"best interest" provision in a viewpoint-neutral fashion, using it to
grant free access only to longstanding users of school facilities. Id. at
627. In addition, the court found that CEF did not qualify for free
access as a "school organization" and that the school-organization cat-
egory was reasonably drawn and viewpoint neutral. Id. at 628.
CEF filed this appeal. The parties agree that this case presents only
questions of law, which we review de novo, based upon "an indepen-
dent examination of the whole record in order to make sure that the
judgment does not constitute a forbidden intrusion on the field of free
expression," In re Morrissey, 168 F.3d 134, 137 (4th Cir. 1999)
(internal quotations omitted).
II.
A.
"It is axiomatic," the Supreme Court has held, "that the government
may not regulate speech based on its substantive content or the mes-
sage it conveys." Rosenberger v. Rector & Visitors of Univ. of Va.,
515 U.S. 819, 828 (1995). This does not mean that the government
must allow all speech on all of its property at all times, because the
state has the "power to preserve the property under its control for the
use to which it is lawfully dedicated." Perry Educ. Ass’n v. Perry
Local Educators’ Ass’n, 460 U.S. 37, 46 (1983) (internal quotations
omitted). But it does mean that when the government opens its prop-
erty to private speech, it may not discriminate based upon the view-
point of the speaker, and it must also "respect the lawful boundaries
it has itself set." Rosenberger, 515 U.S. at 829.2
2
The "viewpoint discrimination" prohibited in all forums is "an egre-
gious form of content discrimination" in which the government "targets
CHILD EVANGELISM v. ANDERSON SCHOOL DIST. FIVE 7
The ban on viewpoint discrimination is a constant. Beyond this,
speakers’ rights depend upon how widely the government has opened
its property and its purposes in doing so. Cornelius v. NAACP Legal
Defense & Educ. Fund, Inc., 473 U.S. 788, 800 (1985); see also Gou-
lart v. Meadows, 345 F.3d 239, 248-50 (4th Cir. 2003). In public
forums that "by long tradition or by government fiat have been
devoted to assembly and debate," speakers’ rights are at their apex.
Perry, 460 U.S. at 45. "[C]ontent-based restrictions on speech are
valid only if they are narrowly tailored to serve a compelling state
interest." Goulart, 345 F.3d at 248. Neutral regulations of time, place,
and manner are permitted when they are "narrowly tailored to serve
a significant government interest" and "leave open ample alternative
channels of communication." Id. (quoting Perry, 460 U.S. at 45).
At the other end of the spectrum lie nonpublic forums, which are
"not open by tradition or designation to the public for expressive
activity." Id. These forums are defined by "selective access," Perry,
460 U.S. at 47, with permission "contingent upon non-ministerial
judgments," Goulart, 345 F.3d at 250 (internal quotations omitted).
The government may draw distinctions based upon "subject matter
and speaker identity," but the restrictions must be "reasonable in light
of the purpose served by the forum" as well as viewpoint-neutral.
Cornelius, 473 U.S. at 806.
A limited public forum is a "hybrid" of traditional public and non-
public forums. Child Evangelism Fellowship of Md., Inc. v. Montgom-
ery County Pub. Sch., 457 F.3d 376, 382 (4th Cir. 2006) (hereinafter
"CEF of Maryland"). Limited public forums are characterized by
"purposeful government action" intended to make the forum "gener-
ally available." Goulart, 345 F.3d at 249 (internal quotations omitted).
As in nonpublic forums, the state may reserve the forum "for certain
groups or for the discussion of certain topics," but it "must not dis-
criminate against speech on the basis of viewpoint," and any restric-
not subject matter, but particular views taken by speakers on a subject."
Rosenberger, 515 U.S. at 829. "Content discrimination" includes both
viewpoint-discriminatory rules and rules that limit forums to particular
subjects, irrespective of viewpoint. Id. at 829-30. The government is per-
mitted to set reasonable subject-matter limitations, except in public
forums that are opened to all speech by tradition or government decree.
8 CHILD EVANGELISM v. ANDERSON SCHOOL DIST. FIVE
tion "must be reasonable in light of the purpose served by the forum."
Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106-07 (2001)
(internal quotations omitted).
B.
Several corollaries of the prohibition on viewpoint discrimination
are relevant to this case. First, government may not bar religious per-
spectives on otherwise permitted subjects, as it constitutes viewpoint
discrimination to permit "the presentation of all views . . . except
those dealing with the subject matter from a religious standpoint."
Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S.
384, 393 (1993). Recent Supreme Court decisions establish that any
tension between the Establishment and Free Speech Clauses that may
have motivated past exclusion of religious groups from government
forums is more apparent than real. 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, even if some speakers are denied forum access under
these neutral principles. See id. at 394-96; Rosenberger, 515 U.S. at
837-46; Good News Club, 533 U.S. at 113-19. The decisions also
indicate that communities of faith may not be arbitrarily excluded
from the protections of the Free Speech Clause, and we review this
case with that in mind. See id. at 107.
A second corollary of the prohibition on viewpoint discrimination
is the principle that administrators may not possess unfettered discre-
tion 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 view-
point of the speaker." City of Lakewood v. Plain Dealer Publ’g Co.,
486 U.S. 750, 763-64 (1988). Without determinate standards,
post hoc rationalizations by the licensing official and the use
of shifting or illegitimate criteria are far too easy, making it
difficult for courts to determine in any particular case
whether the licensor is permitting favorable, and suppress-
ing unfavorable, expression. . . . [T]he difficulties of proof
and the case-by-case nature of ‘as applied’ challenges render
CHILD EVANGELISM v. ANDERSON SCHOOL DIST. FIVE 9
the licensor’s action in large measure effectively unreview-
able.
Id. at 758-59. In a standardless environment, speakers might engage
in self-censorship out of the fear they would be discriminated against
based upon their views. Id. at 757. Ascertainable criteria, on the other
hand, may protect the government as well as speakers, by giving rise
to fewer claims that policies have been applied in a discriminatory
fashion and reducing the need for discovery into practices and
motives when litigation does occur.
The Supreme Court has specifically prohibited unbridled discretion
in traditional public forums. We have further held that since the risks
of unbridled discretion "are just as present in other forums," the prohi-
bition is a constant in forum analysis. CEF of Maryland, 457 F.3d at
386. This has been a matter of consensus among the courts of appeals.
Id. at 386-87 (citing Atlanta Journal & Constitution v. City of Atlanta
Dep’t of Aviation, 322 F.3d 1298, 1306-07, 1310-11 (11th Cir. 2003);
DeBoer v. Village of Oak Park, 267 F.3d 558, 572-74 (7th Cir. 2001);
Lewis v. Wilson, 253 F.3d 1077, 1079-80 (8th Cir. 2001); Summum
v. Callaghan, 130 F.3d 906, 919-20 (10th Cir. 1997); Sentinel
Commc’ns Co. v. Watts, 936 F.2d 1189, 1200 n.11 (11th Cir. 1991)).
Our approach does not mean that traditional public forum cases on
administrative discretion can be directly transposed to other forums,
because we review all policies "in light of the characteristic nature
and function of that forum." CEF of Maryland, 457 F.3d at 387 (inter-
nal quotations omitted). We have held that the unbridled discretion
inquiry is "not a static inquiry, impervious to context," but "even in
cases involving nonpublic or limited public forums," if a policy "does
not provide sufficient criteria to prevent viewpoint discrimination,"
then it "generally will not survive constitutional scrutiny." Id. (inter-
nal quotations and alterations omitted).
III.
We turn now to applying First Amendment forum analysis to the
school district’s policies in this case. The district’s fee-waiver system
is the relevant forum, because the forum is defined "in terms of the
access sought by the speaker." Cornelius, 473 U.S. at 801; see also,
10 CHILD EVANGELISM v. ANDERSON SCHOOL DIST. FIVE
e.g., CEF of Maryland, 457 F.3d at 378-79 (analyzing "take-home
flyer forum" when school district permitted group to distribute infor-
mation through several channels but not through take-home flyers).
Where the state encourages private speech by making funds available,
the money constitutes a forum "more in a metaphysical than in a spa-
tial or geographic sense, but the same principles are applicable."
Rosenberger, 515 U.S. at 830.
CEF’s challenge parallels that in Rosenberger. In Rosenberger, a
university treated a religious organization that published a magazine
as free to "exist and operate at the University," id. at 824, 826, but
denied it a subsidy available to student-run media, id. at 827. The
court applied forum analysis to the subsidy system. Id. at 830-31.
Similarly, the district has not denied CEF access to school facilities,
but has denied it a speech subsidy in the form of a fee waiver, so the
waiver system constitutes the relevant forum. Neither party chal-
lenges the district court’s holding that limited public forum standards
govern the case. See also Goulart, 345 F.3d at 250 (holding "two
types of government property . . . clearly are limited public fora: pub-
lic school facilities during after school hours and a student activities
fund of a public university.") (footnotes omitted).
A.
The fee-waiver rules of Policy KG that were in effect when this lit-
igation began cannot be squared with the prohibition on unfettered
discretion so essential to viewpoint neutrality. Policy KG authorized
administrators to waive usage fees "as determined to be in the dis-
trict’s best interest" — conveying, by its terms, an apparent carte
blanche. While an adequate policy must contain "narrow, objective,
and definite standards," Shuttlesworth v. City of Birmingham, 394
U.S. 147, 151 (1969), "the best interest of the district" is as subjective
a notion as good government, good taste, or good character, cf.
Schneider v. New Jersey (Town of Irvington), 308 U.S. 147, 158, 164
(1939) (finding statute requiring that officer refuse license to canvas
if "the canvasser is not of good character" made exercise of liberty
"depend[ ] upon the exercise of the officer’s discretion").
The "best interest" language of Policy KG is no more definite than
"the public welfare, peace, safety, health, decency, good order, morals
CHILD EVANGELISM v. ANDERSON SCHOOL DIST. FIVE 11
or convenience" standard found wanting in Shuttlesworth, 394 U.S.
at 150, or the rejected provision in Forsyth County v. Nationalist
Movement, which allowed an administrator to adjust a permit fee "in
order to meet the expense incident to the administration of the Ordi-
nance and to the maintenance of public order in the matter licensed,"
505 U.S. 123, 126-27 (1992). Indeed, the Supreme Court offered a
modest variation on this "best interest" language as an archetype of
excessive discretion in Lakewood, where it invalidated a licensing
ordinance when "nothing in the law as written requires the mayor to
do more than make the statement ‘it is not in the public interest’ when
denying a permit application."3 486 U.S. at 769.
In sum, speech is not to be selectively permitted or proscribed
according to official preference. The "best interest" guidelines are "a
virtual prescription for unconstitutional decision making," and permit
officials to regulate speech "‘guided only by their own ideas’ of what
constitutes the good of the community." Safir, 18 F. Supp. 2d at 344
(quoting Shuttlesworth, 394 U.S. at 150). Since "[n]othing in the [pol-
icy] or its application prevents the official from encouraging some
3
Courts have thus directly condemned "best interest" formulations in
the past. Million Youth March, Inc. v. Safir, 18 F. Supp. 2d 334, 344
(S.D.N.Y. 1998) (addressing provision that allowed denial of parade per-
mit applications when "approval of the application is not in the best
interest of the community, City or general public for reasons that may
include, but are not limited to, lack of good character, honesty, integrity
or financial responsibility of the sponsor"); Smith v. Univ. of Tenn., 300
F. Supp. 777, 783 (E.D. Tenn. 1969) (addressing policy authorizing uni-
versity to reject or permit speaker invitations depending on "whether the
invitation and its timing are in the best interests of the University");
Reproductive Rights Network v. President of the Univ. of Mass., 699
N.E.2d 829, 834-35 (Mass. App. Ct. 1998) (addressing policy allowing
university to deny access to facilities "in the best interest of the Univer-
sity"). While the Ninth Circuit upheld a "best interest" policy, it did so
on the grounds that courts must "invest high school educators with
greater control over expressive activities that bear the school’s imprima-
tur than other forms of speech or use of government facilities." Planned
Parenthood of S. Nev., Inc. v. Clark County Sch. Dist., 941 F.2d 817, 819
(9th Cir. 1991) (en banc). After-school club meetings do not generally
carry an official imprimatur, see Good News Club, 533 U.S. at 113, and
the school district does not claim such a circumstance here.
12 CHILD EVANGELISM v. ANDERSON SCHOOL DIST. FIVE
views and discouraging others through the arbitrary application of
fees," Forsyth, 505 U.S. at 133, Policy KG did not by its terms pro-
vide the standards that the First Amendment requires.
B.
The school district argues not that Policy KG contained adequate
standards by itself, but that "well-established practice" adequately
narrowed its terms. Lakewood, 486 U.S. at 770. The district argues
that school administrators implemented the "best interest" waiver pro-
vision in a narrow, viewpoint-neutral manner by granting such waiv-
ers only to longstanding free users. Aside from longstanding users,
the district claims, it granted free use only to "school organizations,"
meaning groups operated by district schools or sponsored by their
principals; joint business/education partnerships; and governmental
entities. Since Lakewood established that a broad policy can be nar-
rowed by a limiting practice that is "well-understood and uniformly
applied" and "has virtually the force of a judicial construction," the
district argues that its policy is saved by its practice. 486 U.S. at 770
n.11.
We reject this argument for several reasons. First, the district’s lim-
iting construction is not as "uniformly applied" as its argument would
suggest: the Anderson County Democratic and Republican parties
were given free use of school facilities even though they fall within
none of the classes permitted waivers under the district’s construction.
At oral argument the district characterized such use as premised upon
the mistaken belief that parties were governmental entities, but mis-
taken waivers undermine the district’s claim that its limiting construc-
tion was "well-understood and uniformly applied." Id.The district’s search for a limiting principle in its practice is further
hampered by the paucity of past practice with respect to the vague
"best interest" provision. CEF’s waiver request is the only formal
request for a "best interest" waiver that Assistant Superintendent
Brooks recalled, and the only challenge to a waiver denial of which
he was aware. The district’s practice of granting "best interest" waiv-
ers to scouting groups and its single denial of a waiver to CEF is a
slender reed upon which to rest a claim of "well-established practice."
CHILD EVANGELISM v. ANDERSON SCHOOL DIST. FIVE 13
Even if the record of practice were more robust, we would question
its relevance because school officials indicated in their depositions
that they saw this practice as an exercise of their discretion, rather
than a constraint upon it. Superintendent Betty T. Bagley testified that
the scouting groups had not been charged a fee during her tenure
because of their longstanding free use, but she did not suggest that she
believed administrators could only waive fees for such users. To the
contrary, Bagley agreed that Policy KG gave her the authority to
waive fees "if [she] determine[d] that something [was] in the best
interest of the School District," but said she chose not to exercise that
power because "it would be an economical problem for the District"
to establish a precedent of waiving the fees here.
Similarly, Assistant Superintendent Brooks’ letter denying CEF’s
waiver appeal indicated that Brooks believed limiting "best interest"
waivers to longstanding users was a prudent practice, not a binding
one. He wrote, "Deviating from this practice now would set a prece-
dent that would likely lead to unnecessary future problems. Accord-
ingly, based on the District’s facilities usage policy . . . it is my
decision to deny your request to waive the facilities usage fee for the
Good News Club weekly meetings" (emphasis added). Indeed, the
district indicated in response to interrogatories that a "best interest"
waiver also might be called for when a use would produce "direct tan-
gible benefits to the school district," or when an organization was
"using the facilities at the District’s invitation," contradicting the dis-
trict’s present limiting interpretation.
The district’s limiting construction is further undermined by school
administrators’ correspondence with CEF. Brooks’ initial denial of
CEF’s request made no mention of longstanding use, instead stating,
"Considering the extent and frequency of your planned use of our
facilities, we will not be in a position to waive the fee." Brooks aban-
doned this justification in his letter rejecting CEF’s appeal, perhaps
in part because the scouting groups apparently met more frequently
than CEF and at more school locations. But his initial denial on
grounds unrelated to CEF’s status as a new user again undermines the
district’s argument that it was a "well-understood" limitation with
"virtually the force of a judicial construction" that administrators
could only grant "best interest" waivers to established users. Id. at 770
n.11. Brooks’ shift suggests, to the contrary, that administrators
14 CHILD EVANGELISM v. ANDERSON SCHOOL DIST. FIVE
understood the "best interest" provision to be quite capacious, and as
the Eighth Circuit held in striking down a policy for excessive discre-
tion, "The very fact that the [government] could so readily switch jus-
tifications for its rejection . . . illustrates the constitutional difficulty
with the statute." Lewis, 253 F.3d at 1080.
In sum, while administrators may have chosen to grant "best inter-
est" waivers only to longstanding users, there is no indication that
they believed their authority to be narrower than the policy’s terms
indicated. The school district’s argument amounts to a claim that
administrators "applied legitimate, content-neutral criteria," but as
Forsyth established, such a claim is "irrelevant," because whether an
administrator possesses excessive discretion under the First Amend-
ment depends "not on whether the administrator has exercised his dis-
cretion in a content-based manner, but whether there is anything . . .
preventing him from doing so." 505 U.S. at 133 n.10.
Moreover, while we review discretionary policies "in light of the
characteristic nature and function" of the forum, CEF of Maryland,
457 F.3d at 387 (internal quotations omitted), and apply principles
from public forum cases in a manner "compatible with the intended
purpose of the property," Ark. Educ. Television Comm’n v. Forbes,
523 U.S. 666, 673 (1998), no special aspect of the fee system justifies
the unfettered discretion of its administrators. The district does not
claim the forum to be a nonpublic one, such as the candidate debate
in Forbes, see id. at 680, nor does it argue that objective, viewpoint-
neutral rules could not readily accomplish the district’s stated goal of
opening its facilities to the community without subsidizing public use.
Cf. Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 586 (1998)
(permitting greater administrative discretion for competitive, inher-
ently content-based artistic grant allocations than for "comparatively
objective decisions on allocating public benefits such as access to a
school auditorium or a municipal theater") (emphasis added).
Since "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,"
Lakewood, 486 U.S. at 763-64, the absence of constraining standards
in the text of Policy KG and in administrators’ practice renders Policy
KG incompatible with the First Amendment.
CHILD EVANGELISM v. ANDERSON SCHOOL DIST. FIVE 15
C.
Other terms in Policy KG also give us pause. The authorization of
free access by "school organizations," as interpreted by the district,
failed to provide the "narrow, objective, and definite standards" that
the First Amendment requires. Shuttlesworth, 394 U.S. at 151. The
term "school organizations" is certainly more susceptible to concrete
definition than "best interest," but neither policy nor practice has
given the term objective content. Policy KG’s non-exclusive list of
organizations "included" in the "school organization" category —
"[p]arent-teacher organizations/associations, district organizations,
band and athletic booster clubs, SADD, 4-H clubs, FFA and FHA
organizations and other similar organizations" — suggests the phrase
might refer to groups whose mission is to support district schools and
to groups that are extracurricular extensions of traditional classroom
subjects. But the policy does not require this construction, as it omits
any definition of "school organization" and "other similar organiza-
tion."
Fatally, school officials declined to embrace this or any other limit-
ing construction. Assistant Superintendent Brooks and Superintendent
Bagley said in their depositions that principals determine which
groups qualify as school-sponsored. While Bagley said that
"[u]sually" principals sponsor activities "that directly relate to the cur-
riculum of the individual grades and to the mission of their schools,"
both Bagley and Brooks indicated that principals are free to decide
which groups qualify, and neither official identified further guidelines
constraining principals’ determinations. Even in litigation, the district
has embraced a definition of school organizations as including all "or-
ganizations sponsored by school principals."
We agree with the district court that as a result, the "school organi-
zations" provision creates "the potential for a school principal to dis-
criminate on the basis of content or viewpoint in determining whether
to sponsor an organization," because "the principals appear to have
discretion over whether to sponsor an organization." 438 F. Supp. 2d
at 635. As a further avenue through which "[t]he decision . . . whether
to charge at all" for use of school facilities is "left to the whim of the
administrator," we find this provision incompatible with the First
16 CHILD EVANGELISM v. ANDERSON SCHOOL DIST. FIVE
Amendment, which "prohibits the vesting of such unbridled discretion
in a government official." Forsyth, 505 U.S. at 133.
IV.
The district next argues that even if its fee-waiver system initially
failed to adequately cabin discretion, it remedied this problem in Pol-
icy KF by eliminating the "best interest" waivers. In their place, the
district added waivers for groups whose "use of the district’s facilities
began at a time when fees were not charged for such uses" and for
groups that "have made use of the district’s facilities for at least
twenty years." The fact that this revision occurred while CEF’s law-
suit was pending suggests that the change may not have been inspired
by a sudden commitment to First Amendment values, but "[e]ven
when litigation prompts the change, if a revised policy passes consti-
tutional muster, a court will not penalize the government for trans-
gressions under an earlier policy." CEF of Maryland, 457 F.3d at 386.
Although the new policy is an improvement, it remains deficient.
First, the new policy continues to authorize free access by "school
organizations," with principals possessing total control over which
groups qualify. In addition, the new policy incorporates inadequately
constrained judgments made under the old policy in several ways. It
appears to grant free use to any group that received a "best interest"
waiver when it began use of school facilities, because such a group’s
activities would have "beg[u]n at a time when fees were not charged
for such uses." It thus seems to incorporate "best interest" determina-
tions by reference, denying CEF a fee waiver based upon the very
"best interest" judgments under Policy KG that rendered the old pol-
icy unconstitutional.
Furthermore, scouting groups accumulated twenty years of use
without ever having to pay a fee in part because they received waivers
under Policy KG and were apparently not charged fees prior to the
enactment of the "best interest" provision. CEF, in contrast, was
charged for access when the "best interest" waiver provision was in
effect, and there is no reason to imagine CEF would have been
granted an informal fee waiver under the prior policy. The district’s
fees were substantial — CEF paid $1,545 over parts of two school
years. And CEF decided to stop meeting in part because of cost, sig-
CHILD EVANGELISM v. ANDERSON SCHOOL DIST. FIVE 17
naling that the fees posed a genuine obstacle to the use of school
facilities. Since the old policy made it far easier for beneficiaries of
impermissibly discretionary fee decisions to become longstanding
users than for others to do so, the new policy errs by making free
access contingent upon longstanding use.
Our analysis parallels that of the Seventh Circuit in Southworth v.
Board of Regents of the University of Wisconsin System, 307 F.3d 566(2002), which invalidated a policy linked to a constitutionally flawed
predecessor. Southworth rejected a system in which grants were allo-
cated in part based upon "[c]onsideration of the length of time that [a
group] has been in existence and the amount of funding the [group]
received in prior years," noting,
until recently there were no procedures designed to assure
the distribution of funds in a viewpoint-neutral manner.
Thus, to the extent that the current funding decisions are
based on the length of time an organization has been in exis-
tence, or the amount of funding that the [group] received in
the past, the current decisions depend in part on viewpoint-
based decisions of the past.
Id. at 593-94. We must likewise reject the school district’s new guide-
lines because potential "viewpoint discrimination from past years has
been institutionalized into the current system." Id. at 594.
V.
Anderson School District Five’s policies set forth time-honored
objectives that the First Amendment does not call into question. The
Constitution does not prevent the district from opening its buildings
for community use or from recouping the costs of this service. It does
not require that the district adopt any particular concrete, reasonable,
and viewpoint-neutral set of rules to govern access — it simply
requires that the district adopt some such neutral system of its own
choosing. We do not expect the district to speak with perfect precision
or account for every contingency. But neither can the Constitution’s
promise that a speaker’s access to government property will not be
granted, denied, burdened, or subsidized because of the speaker’s
views be made to depend solely upon the good faith of state officials.
18 CHILD EVANGELISM v. ANDERSON SCHOOL DIST. FIVE
Because the administrative discretion at the core of the school dis-
trict’s policies exceeds the bounds permitted by the First Amendment,
the judgment of the district court is reversed and the case is remanded
for a refund of CEF’s usage fees, and such other relief as the district
court determines is appropriate and consistent with this decision.4
REVERSED AND REMANDED
4
As a prevailing party, the plaintiff shall also be awarded reasonable
attorneys’ fees. See 42 U.S.C. § 1988.