Child Evangelism Fellowship of South Carolina v. Anderson School District Five
2006 U.S. App. LEXIS 30840, 470 F.3d 1062, 2006 WL 3691483 (2006)
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Rule of Law:
A government policy regulating access to a limited public forum violates the First Amendment if it grants officials unfettered discretion to grant or deny benefits, such as fee waivers, because such discretion creates an unacceptable risk of viewpoint discrimination, regardless of whether discrimination is actually proven in a specific application.
Facts:
- Child Evangelism Fellowship (CEF), a nonprofit religious organization, sponsors after-school 'Good News Clubs' for children aged five to twelve.
- Anderson School District Five's policy (Policy KG) charged usage fees for its facilities but allowed for waivers for 'school organizations' and included a catch-all provision for waivers 'determined to be in the district's best interest.'
- The district had a practice of waiving fees for groups like the Boy Scouts and Girl Scouts under the 'best interest' clause, citing their longstanding free use of the facilities.
- In 2003, CEF applied to hold Good News Club meetings at a district elementary school and requested a fee waiver under the 'best interest' provision.
- The district approved CEF's use of the facilities but denied the fee waiver, first citing the 'extent and frequency' of use, and later explaining its practice was to only waive fees for longstanding users like the scouts.
- CEF held meetings and paid a total of $1,545 in fees over two school years before stopping its meetings, with the cost being a contributing factor.
- After CEF filed suit, the district replaced Policy KG with Policy KF, which eliminated the 'best interest' clause but created a new waiver for groups that had used the facilities for at least twenty years.
Procedural Posture:
- Child Evangelism Fellowship (CEF) sued Anderson School District Five in the U.S. District Court for the District of South Carolina, alleging First Amendment violations.
- The district court, after a bench trial, found that the 'best interest' waiver provision was unconstitutionally vague.
- However, the district court entered judgment for the school district, concluding it had not engaged in viewpoint discrimination because it had applied the policy neutrally to grant waivers only to longstanding users.
- CEF, as the plaintiff-appellant, appealed the district court's judgment to the U.S. Court of Appeals for the Fourth Circuit.
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Issue:
Does a school district's fee-waiver policy for facility use, which allows officials to waive fees 'as determined to be in the district's best interest,' violate the Free Speech Clause of the First Amendment by granting unconstitutional, unfettered discretion?
Opinions:
Majority - Wilkinson
Yes. A school district's fee-waiver policy violates the First Amendment when it grants officials unfettered discretion, creating an unacceptable risk of viewpoint discrimination. The standard of waiving fees 'as determined to be in the district’s best interest' is not narrow, objective, or definite, and thus provides no meaningful constraint on administrators. The First Amendment prohibits vesting such unbridled discretion in a government official because it allows for decisions based on the content of speech or the viewpoint of the speaker. The district's argument that its 'well-established practice' of only granting waivers to longstanding users narrowed the policy fails because the practice was not uniformly applied, officials did not perceive it as a binding constraint, and they offered shifting justifications for denying CEF's request. The revised policy (Policy KF) is also unconstitutional because it institutionalizes the potential discrimination of the past policy by grandfathering in groups that benefited from the unconstitutional discretion, thereby perpetuating the initial constitutional flaw.
Analysis:
This decision reinforces the principle that a policy regulating speech can be unconstitutional on its face due to excessive discretion, without requiring a plaintiff to prove it was applied in a discriminatory manner. It firmly applies the 'unfettered discretion' doctrine, previously associated with traditional public forums, to limited public forums like school facilities. The ruling serves as a strong warning to government bodies that policies governing access to public forums must contain clear, objective, and definite standards. It also establishes that simply replacing a facially unconstitutional policy with one that grandfathers in the beneficiaries of the old system does not cure the constitutional defect, as it perpetuates the effects of the prior unconstitutional discretion.
