The opinion
TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 95-1107
of :
: November 21, 1996
DANIEL E. LUNGREN :
Attorney General :
:
ANTHONY S. Da VIGO :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE CATHIE WRIGHT, MEMBER OF THE CALIFORNIA STATE
SENATE, has requested an opinion on the following questions:
1. In order for the governing board of a school district to permit a religious organization to
conduct its services at a school facility, what showing must be made that the religious organization
lacks another suitable meeting place for the conduct of its services?
2. May the governing board of a school district permit a religious organization to conduct its
services at a school facility for an indefinite period of time?
CONCLUSIONS
1. In order for the governing board of a school district to permit a religious organization to
conduct its services at a school facility, no showing must be made that the religious organization lacks
another suitable meeting place for the conduct of its services.
2. The governing board of a school district may indefinitely renew the temporary permit of a
religious organization to conduct its services at a school facility.
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ANALYSIS
The Civic Center Act (Ed. Code, '' 40041-40048; "Act")1 expresses the Legislature's intent to
create a public forum for virtually all forms of expression - artistic, political, religious, economic,
educational, and moral - at each public school in the state. (76 Ops.Cal.Atty.Gen. 52, 53 (1993).)
Specifically, section 40041 provides as follows:
"(a) There is a civic center at each and every public school facility and grounds
within the state where the citizens, parent-teachers' associations, camp fire girls, boy
scout troops, farmers' organizations, school-community advisory councils, senior
citizens' organizations, clubs, and associations formed for recreational, educational,
political, economic, artistic, or moral activities of the public school districts may
engage in supervised recreational activities, and where they may meet and discuss,
from time to time, as they may desire, any subjects and questions which in their
judgment pertain to the educational, political, economic, artistic, and moral interests of
the citizens of the communities in which they reside.
"(b) The governing board of any school district may grant the use of school
facilities or grounds as a civic center upon the terms and conditions the board deems
proper, subject to the limitations, requirements, and restrictions set forth in this article,
for the following purposes:
"(1) Public, literary, scientific, recreational, educational, or public agency
meetings.
"(2) The discussion of matters of general or public interest.
"(3) The conduct of religious services for temporary periods, on a one-time or
renewable basis, by any church or religious organization that has no suitable meeting
place for the conduct of the services, provided the governing board charges the church
or religious organization using the school facilities or grounds a fee as specified in
subdivision (d) of Section 40043.
"(4) Child care or day care programs to provide supervision and activities for
children of preschool and elementary school age.
"(5) The administration of examinations for the selection of personnel or the
instruction of precinct board members by public agencies.
"(6) Supervised recreational activities including, but not limited to, sports
league activities for youths that are arranged for and supervised by entities, including
1
All statutory references herein are to the Education Code.
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religious organizations or churches, and in which youths may participate regardless of
religious belief or denomination.
"(7) Other purposes deemed appropriate by the governing board." (Italics
added.)2
We are asked herein to focus on the meaning and effect of two of the limitations
contained in section 40041, subdivision (b)(3). What showing must be made that the religious
organization "has no suitable meeting place for the conduct of the services," and does a permit "for
temporary periods, on a one-time or renewable basis" include a permit for an indefinite period of time?3
1. Suitable Meeting Place
We commence our analysis by considering the constitutional validity of the
requirement that a religious organization must demonstrate that it has no suitable meeting place for the
conduct of its services in order to qualify for renting a school facility under the terms of section 40041.
It is, of course, well established that a statute should be construed in the light of constitutional
constraints. (See Young v. Haines (1986) 41 Cal.3d 883, 898; 76 Ops.Cal.Atty.Gen. 270, 274 (1993).)
However, to the extent that the statutory provision is constitutionally infirm, it is unenforceable and
void and must be disregarded. (65 Ops.Cal.Atty.Gen. 261, 265 (1982).)
The constitutional provision against which we must test the language of section 40041
is the First Amendment of the United States Constitution. It provides: "Congress shall make no law
. . . abridging the freedom of speech . . . ." This restriction against the exercise of federal power is
applicable to state and local governments, including school districts, by virtue of the due process clause
of the Fourteenth Amendment. (See Hazelwood School District v. Kuhlmeier (1987) 484 U.S. 260,
266; Tinker v. Des Moines School Dist. (1969) 393 U.S. 503, 507-509; Everson v. Board of Educ.
(1947) 330 U.S. 1, 8; 77 Ops.Cal.Atty.Gen. 56, 57-58 (1994).
Similar to the federal Constitution, subdivision (a) of section 2 of article I of the
California Constitution states: "Every person may freely speak, write and publish his or her sentiments
on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty
of speech or press." The California Constitution has been construed as being more protective of First
Amendment rights than the federal Constitution. (Spiritual Psychic Science Church v. City of Azusa
(1985) 39 Cal.3d 501, 519; Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 903, 907-910;
Wilson v. Superior Court (1975) 13 Cal.3d 652, 658; Women's Internat. League Etc. Freedom v. City of
Fresno (1986) 186 Cal.App.3d 30, 37-38.) Nevertheless, we believe that an examination of the issues
2
Subdivision (d) of section 40043 specifies a fee for churches and religious organizations of "an amount at least equal to
the district's direct costs."
3
Nothing herein is intended to suggest that the use of school facilities or grounds for religious or other
communicative purposes may be allowed to impair or interfere with the use of the property for the instructional or
instructional-related activities for which it was established. (75 Ops.Cal.Atty.Gen. 232, 237-238 (1992).)
3. 95-1107
to be resolved herein requires similar treatment under the two Constitutions (see California Teachers
Assn v. Governing Board (1996) 45 Cal.App.4th 1383, 1391-1392; Savage v. Trammell Crow Co., Inc.
(1990) 223 Cal.App.3d 1562, 1572-1573; U.C. Nuclear Weapons Lab Conversion Project v. Lawrence
Livermore Laboratory (1984) 154 Cal.App.3d 1157, 1164-1165; 75 Ops.Cal.Atty.Gen. 232, 238
(1992)), and thus we will rely upon both federal and California cases in our analysis.
Here section 40041 imposes a requirement peculiar to religious organizations alone.4
They must first prove a lack of another suitable meeting place in order to rent a school facility. Does
this requirement comport with the First Amendment?
To answer this question we first determine the type of "public forum" that is created by
the Act at each school facility. In 76 Ops.Cal.Atty.Gen. 52, supra, and 75 Ops.Cal.Atty.Gen. 232,
supra, we described the civic center area of each school as a "designated public forum" for purposes of
the First Amendment. (See American Civil Liberties Union v. Board of Education (1963) 59 Cal.2d
203, 208; Danskin v. San Diego Unified Sch. Dist. (1946) 28 Cal.2d 536, 540; Goodman v. Board of
Education (1941) 48 Cal.App.2d 731, 734-738.) In Hazelwood School District v. Kuhlmeier, supra,
484 U.S. at 267, the court explained:
". . . The public schools do not possess all of the attributes of streets, parks, and
other traditional public forums that `time out of mind, have been used for purposes of
assembly, communicating thoughts between citizens, and discussing public questions.'
[Citations.] . . . [S]chool facilities may be deemed to be public forums . . . if school
authorities have `by policy or by practice' opened those facilities for indiscriminate use
by the general public,' [citation], or by some segment of the public, such as student
organizations. [Citations.]"
In Perry Ed. Assn. v. Perry Local Educators' Assn. (1983) 460 U.S. 37, 45, the court described a
designated public forum as "public property which the State has opened for use by the public as a place
of expressive activity." (See International Soc. For Krishna Consciousness, Inc. v. Lee (1992) 505
U.S. 672, 678; Cornelius v. NAACP Legal Defense & Ed. Fund (1985) 473 U.S. 788, 802; Widman v.
Vincent (1981) 454 U.S. 263, 267.) Such is clearly the case here.
As a designated public forum, a school's civic center may be subjected to `[r]easonable
time, place, and manner regulations"; however, any "content-based prohibition must be narrowly drawn
to effectuate a compelling state interest." (Perry Ed. Assn. v. Perry Local Educators' Assn., supra, 460
U.S. at 46; accord, International Soc. For Krishna Consciousness, Inc. v. Lee, supra, 505 U.S. at 678;
Cornelius v. NAACP Legal Defense & Ed. Fund, supra, 473 U.S. at 800.) In effect subdivision (b)(3)
of section 40041 excludes from a school's civic center any religious organization that has another
suitable meeting place for the conduct of its services. Is such "content-based prohibition" justified by a
compelling state interest and narrowly drawn to achieve that end?
4
A similar limitation applies to a specified group of "nonprofit organizations, and clubs or associations organized
to promote youth and school activities . . ." where the authorization for such use is otherwise mandatory (' 40043, subd.
(a)) rather than permissive (' 40041, subd. (b)).
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Since "the Legislature expressed its intent to include religious expression in the vast
array of expressive activity listed" (76 Ops.Cal.Atty.Gen., supra, at 56), such expression cannot be
perceived as inherently incompatible with the general purposes served by a school's civic center. We
have been apprised of no compelling state interest for the exclusion based upon the availability of
alternative venues. Whether there exists another suitable place for the conduct of religious services
simply has no bearing upon the compatibility of such a use on the other uses of a school's civic center.
Nor may a compelling state interest be predicated upon an interest the state has in
avoiding a violation of the establishment clause of the First Amendment. (Cf. Rosenberger v. Rector
& Visitors of Univ. of Va. (1995) 515 U.S. ___, 115 S.Ct. 2510, 132 L.Ed.2d 700; Widmar v. Vincent,
supra, 454 U.S. at 271.)5 The religious services would not be conducted during school hours and
clearly would not be sponsored by the school. Given that the property would be used by a wide variety
of private organizations, there would be no realistic danger that the community would perceive the
school district as endorsing religion, and any benefit to religion would be merely incidental. (Lamb's
Chapel v. Center Moriches Union Free School Dist. (1993) 508 U.S. 384, 395.) Thus the use of the
school's civic center by religious organizations without discriminatory limitation would have a secular
purpose, would not have the principal or primary effect of advancing or inhibiting religion, and would
not foster an excessive entanglement with religion. (Ibid.; Lemon v. Kurtzman (1971) 403 U.S. 602;
76 Ops.Cal.Atty.Gen., supra, at 54-59.)
Because no compelling state interest may be found for the exclusion of religious
organizations based upon the availability of alternative venues, such a limitation imposed upon an
otherwise permitted use is constitutionally infirm. Accordingly the use authorized in subdivision
(b)(3) of section 40041 must be construed in the absence of such limitation, inasmuch as we believe
that the provision "is complete in itself and would have been adopted by the legislative body had the
latter foreseen the partial invalidation of the statute." (Valdes v. Cory (1983) 139 Cal.App.3d 773,
791; 65 Ops.Cal.Atty.Gen., supra, at 266.)
We conclude that a religious organization need not establish that it lacks another
suitable meeting place for the conduct of its services in order to rent a school facility under the
provisions of section 40041.
2. Renewable Temporary Periods
The second inquiry is whether a religious organization may be allowed to conduct its
services at a school facility for an indefinite period of time. We conclude that the governing board of a
5
The First Amendment provides in part: "Congress shall make no law respecting an establishment of religion . . . ."
This constitutional safeguard is made applicable to the states through the Fourteenth Amendment. (Abington School Dist. v.
Schempp (1963) 374 U.S. 203, 205; Cantwell v. Connecticut (1940) 310 U.S. 296, 303.) Similarly under section 4 of article I
of the California Constitution, the "[f]ree exercise and enjoyment of religion without discrimination or preference are
guaranteed," and "[t]he Legislature shall make no law respecting an establishment of religion." (See Ellis v. City of La Mesa
(9th Cir. 1993) 990 F.2d 1518, 1524-1525; Hewitt v. Joyner (9th Cir. 1991) 940 F.2d 1561, 1567; Fox v. City of Los Angeles
(1978) 22 Cal.3d 792, 796; Feminists' Women's Health Center v. Philibosian (1984) 157 Cal.App.3d 1076, 1092.)
5. 95-1107
school district may indefinitely renew the temporary permit of a religious organization to conduct its
services at a school facility.
Section 40041, subdivision (b)(3) provides for the conduct of religious services "for
temporary periods, on a one-time or renewable basis . . . ." In construing this language, we are guided
by well established principles of statutory construction. "When interpreting a statute our primary task
is to determine the Legislature's intent." (Freedom Newspapers, Inc. v. Orange County Employees
Retirement System (1993) 6 Cal.4th 821, 826.) "To determine the intent of legislation, we first consult
the words themselves, giving them their usual and ordinary meaning." (DaFonte v. Up-Right, Inc.
(1992) 2 Cal.4th 593, 601.)
The term "temporary" commonly means "lasting for a time only: existing or
continuing for a limited time: impermanent . . . ." (Webster's Third New Internat. Dict. (1971) p.
2353.) To "renew" is "to make new again . . . to begin again . . . to restore to fullness or sufficiency
. . . ." (Id., at p. 1922.) In State Farm Mut. Auto. Ins. Co. v. Johnston (1973) 9 Cal.3d 270, 273, the
court defined the term "temporary" as follows:
". . . `Temporary' is a word of much elasticity and considerable indefiniteness.
[Citation.] It has no fixed meaning in the sense that it designates any fixed period of
time. [Citation.] As commonly accepted, `temporary' is an antonym of `permanent.'
[Citation.]"
Nothing in the phrase "for temporary periods, on a . . . renewable basis" suggests a
limitation upon the number of times the permitted temporary use may be renewed. The fact that a
permit may be consecutively renewed does not transform the temporary permit into a permanent one.
(Cf., People v. Kwolek (1995) 40 Cal.App.4th 1521, 1530.)
We believe that the renewal of a temporary permit under the terms of section 40041
may continue to occur for an indefinite, i.e., "being of a nature that is not or cannot be clearly
determined . . . having no exact limits . . . not clearly fixed" (Webster's Third New Internat. Dict.,
supra, at 1147) period of time. The statutory language itself would not preclude the school board from
indefinitely renewing the temporary permit.6
It is concluded that subdivision (b)(3) of section 40041 does not limit the renewability of the
temporary use permit for a school facility by a religious organization. Such temporary permit may be
renewed indefinitely.
*****
6
It is assumed for purposes of this discussion that the religious organization would not be favored over other authorized
uses. For example, there may be a number of rooms in the school's civic center available for use by a variety of organizations,
all of which would be accommodated.
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