Petition for Writ of Certiorari — Fairfax County School Board v. Fairfax Covenant Church

Supreme Court brief1994

Ask Donna

What actually matters in this document.

Text

Supreme Court, U.S.

| ) FILED

931752 MAY -5 1994

UFFICE Ur iE CLERK

No.

IN THE

Supreme Court of the United States

October Term, 1993

FAIRFAX COUNTY SCHOOL BOARD,

Petitioner,

FAIRFAX COVENANT CHURCH,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Thomas J. Cawley

(Counsel of Record)

Stuart A. Raphael

HUNTON & WILLIAMS

3050 Chain Bridge Road

P.O. Box 1147

Fairfax, Virginia 22030

(703) 352-2200

Counsel for Petitioner

Fairfax County School Board

May 5, 1994

Appellate Printing Services * 523 East Main Street * Richmond, VA 23219 (800) 642-7789

——s

QUESTIONS PRESENTED

1. Does the First Amendment prohibit a public school system

from leasing its school facilities for a church’s weekly worship

services, on a long-term or permanent basis, if the rental rate is so

low that it saves the church hundreds of thousands of dollars a year

in private housing costs.

2. If the Establishment Clause is held to permit the long-term

or permanent use of public school facilities for private worship

services at below-market rental rates, does this ruling resolve an

issue of first impression whose resolution was not clearly fore-

shadowed, such that it should be applied purely prospectively, under

the doctrine of Chevron Oil Co. v. Huson, 404 U.S. 97, 106 (1971),

to deny retroactive damage awards against public school systems

that have adopted contrary policies in reliance on prior Establish-

ment Clause authorities?

PARTIES TO THE PROCEEDINGS

IN THE COURT OF APPEALS

Petitioner Fairfax County School Board (the “School Board’’)

was the appellee and cross-appellant in the Court of Appeals for the

Fourth Circuit, and respondent Fairfax Covenant Church (the

“Church”) was the appellant and cross-appellee. The Church was

the plaintiff in the United States District Court for the Eastern

District of Virginia at Alexandria, and the School Board was the

defendant.

APPLICABILITY OF 28 U.S.C. § 2403(b)

This case draws into question the constitutionality of CaL. Epuc.

Cope §§ 40041(b)(3) and 40043 (West 1993 and Supp. 1994);

N.Y. Epuc. Law § 414 (McKinney 1988 & Supp. 1994); and Wis.

Stat. ANN. §§ 120.12(10) and 120.13(17) (West 1991). Accord-

ingly, 28 U.S.C. § 2403(b) may be applicable. Pursuant to Rule

29.4(c) of the Supreme Court, a copy of this Petition for Writ of

Certiorari is being served upon the Attorneys General for the states

of California, New York and Wisconsin. The question of the consti-

tutionality of these statutes was not certified to them previously by

the Court of Appeals for the Fourth Circuit.

eis

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...............s0-scsccerserssrsssesssersererssssossoenes i

PARTIES TO THE PROCEEDINGS IN THE ;

COURT GPP ABPPTBALS. nncceccevsseceveceseveccscccvscvscecsccccccnccccesecsevenevess ii

APPLICABILITY OF 28 U.S.C. § 2403(D).......c:ccccccseseeeesseeeeeeees ii

Te Gi CURIS ccceccccseescesseceeevesscerevevvenvesevsecesscoevenseqwsees iii

py \ B Le F\ipy 0 ly y .. Senne vi

| en l

a l

CONSTITUTIONAL PROVISIONS AND

cs | WN 5 De A): arene 2

oy ys ge ey LoS 3

ITED, | --sscscscenpnsnsnenerevesnonnewmoesocoosnoveseseoeesorese 3

A. The History of Religious Use of School

Facilities in Fairfax County ...................ssccsersssseseeseereres 4

B. Regulation 8420...............scssecrscseresseresresssssessesssessereees 5

C. Comparative Frequency of Use by Religious

and Non-Religious Users Under Regulation 8420 .......... 6

D. Financial Benefits to Church Uses .............:cccccsseeeeeeeeees 6

Course Of Proceedings ........00....cr.esresccccsescvsvevsesceecsrcereenensssssseseess 8

REASONS FOR GRANTING THE WRIT ...........:ccccceeeeeeeeenees 10

I. THE DECISION BELOW CONFLICTS WITH THE

LAWS OF TWENTY STATES THAT HAVE

RECOGNIZED CONSTITUTIONAL LIMITATIONS

ON THE USE OF PUBLIC SCHOOL FACILITIES

FOR RELIGIOUS PURPOSES ...............:cccsscsseseseeseseeeeesees 10

- lil -

Il. THE COURT OF APPEALS HAS DECIDED AN ~

IMPORTANT CONSTITUTIONAL QUESTION

WHICH HAS NOT BEEN, BUT SHOULD BE,

og A 14

A. The Supreme Court Needs To Determine Which

of Four Rules Applies to the Use of Public School

Property for Religious Purposes ................sc.scssceseeseeeeees 14

B. Does the Regular Use of Public School Facilities

for Private Religious Purposes Without Adequate

Consideration Unconstitutionally Advance Religion? .... 15

1. Must Public Schools Charge a Cost-Recovery

Rate to Regular Church Users? ............c.ccscccceseseeeee 20

2. Must Long-Term Church Users Pay a Market

NS MOTE ERLE Cee Ht Tee 21

a. Isa Market-Rate Necessary to Avoid

Subsidizing Long-Term Religious Use of

Pe ee ati cicdiemlaintctibeihi tall iceasecisistnncwesies 22

b. Is a Market-Rate Necessary to Avoid

Creating the Appearance of Official

Endorsement of Long-Term Religious Use? .....24

If. THE COURT OF APPEALS ERRED IN APPLYING

ITS RULING RETROACTIVELY ...0.0.0.....cccccsscssssssceeseeees 26

a eTeTTTanIITTIITTITTTTY sails ineisesidiotacapiseiniicladpeindnieinadueddiiietmebdiedoenihinmans 30

APPENDIX

A. Opinion of the United States Court of Appeals for

EE ER TAR oP la

B. Order of the United States Court of Appeals for the

Fourth Circuit Denying Petition for Rehearing and

Suggestion for Rehearing in Banc ...............sc0sssssssseseseeseeees 16a

o f¥ -

C. Order of the United States Court of Appeals for the

Fourth Circuit Staying Issuance of the Mandate ................

D. Memorandum Opinion of the U.S. District Court for .

the Eastern District of Virginia (Jan. 22, 1993) .............0.

E. Memorandum Opinion of the U.S. District Court for

the Eastern District of Virginia (Mar. 11, 1993)................

F. Opinion of the Attorney General of the Commonwealth

OE VRID. ceccttcicsnnttiibcncicnenepserresssemeresnatimemvenemnprevennaeenes

G. Declaration of James M. Plutte ...................0...ccccsceseseeeeeeeee

H. Declaration of Mary Jean L. Boatwright...............:cseeseeee

I. Declaration of Homer E. Rhoads.....................::ceeeeeeeeeeeeeees

J. Declaration of Eugene J. Kelly ..............:csscscssssseserseeeeeeeees

yn eitnptenensiaiiins

CFC ie Be Ee eeeiiccccrcevrccenceenscsesnonrevenmmovcorennewenns

M. Annual Contract, 11th Year Renewal, Fairfax

a insisiiienie

List of States Limiting Use of Public School Facilities

Sar TiaTeSSS FOGG 00 cccercccrecccsccrscevsecvevcssocosososoccnsonosorss

TABLE OF AUTHORITIES

Page

CONSTITUTIONAL PROVISIONS AND STATUTES

U.S. Compr, amen § scsi ati passim

28 UBC. § SDIIED sicincinininsdladilitiiie aa 2

28 USL. § 150i ininiinsanenannaiee i Co: 8

£8 UBL. § SDD sccciniceeianen alee 8

£8 UBL. § BOGGS nsscclinkiipman a ii

CaL. Epuc. Cope § 40041 (West RETR Tener ii, 12, 13, 8la

Cac. Epuc. Cope § 40043 (West Supp. 1994)................ li, 13, 8la

Itt. ANN. Stat. ch. 105, para. 5/10-22.10

Guit-fhed 1 cic 12, 82a

Miss. CODE ANN. § 37-7-473 (1990) .....ceccccocccssesseeseoeeeceseeeeeee.n. 83a

N.Y. Epuc. Law § 414 (McKinney 1988 & Supp.

1994) ....coveroserecniiaiiiiipaaasia mma Eo li, 11, 85a

Va. Const. at. 1, § MM cccoumaiie ee 4

Wis. Stat. ANN. § 120.12(10) (West 1991) ....cccccccccc..--.. ii, 13, 87a

Wis. Stat. ANN. § 120.13(17) (West ee li, 12, 13, 87a

CASES

Aguilar v. Felton, 473 U.S. 402 ERA Re Ar 17, 25

American Trucking Associations v. Smith,

496 U.S. WOT UPI ita 27

Arizona Governing Comm. for Tax Deferred Annuity &

Deferred Compensation Plans v. Norris,

465 US. 6713 (I aa 27

Board of Educ. v. Allen, 392 U.S. 236 ee 16, 18

- Vi -

Board of Educ. v. Mergens, 496 U.S. 225 (1990) .........:::cceeeeees 19

Bowen v. Kendrick, 487 U.S. 589 (1988) .........ccccicccccsecsesseeeeeees 716

Butler v. McKellar, 494 U.S. 407 (1990) .0........cccccccccccscceeeseeeeees 27

Chevron Oil Co. v. Huson, 404 U.S. 97 (1971)....... ii, 3, 9, 26-29

Committee for Pub. Educ. & Religious Liberty v.

Nyquist, 413 U.S. 756 (1973) ..........scccseccceseeeeseees 3, 15-21, 30

Committee for Pub. Educ. & Religious Liberty v. Regan,

Ee 16

County of Allegheny v. A.C.L.U., 492 U.S. 573 (1989)....... 24, 25

Davis v. Boget, 50 lowa 11 (1878) .0............ccccceeeseeeeeeeeeeeees 12, 83a

Deeper Life Christian Fellowship v. Sobol, 948 F.2d 79

SEE AE ee ES 11, 85a

Everson v. Board of Educ., 330 U.S. 1 (1947).............. 15, 18, 20

Florida v. Long, 487 U.S. 223 (1988)............:csssccessrcssrcesseceesees 28

Gregoire v. Centennial Sch. Dist., 907 F.2d 1366 (3d Cir.),

EE Tae 85a

Harper v. Virginia Dep’t of Taxation,

Ee AO 9, 26

Hunt v. McNair, 413 U.S. 734 (1973) ......ccccccccccseeeeeeeees 17, 22, 23

James B. Beam Distilling Co. v. Georgia, 111 S. Ct.

ST 28

Lamb’s Chapel v. Center Moriches Union Free Sch. Dist.,

iif Ge eo Ey, 3, 9, 11, 14, 19, 28, 85a

Lee v. Weisman, 112 S. Ct. 2649 (1992) .............cccccsecssrcsseeeeeeees 25

Lemon v. Kurtzman, 403 U.S. 602 (1971) ...........cccceeee- 17, 25, 29

Lemon v. Kurtuman, 411 U.S. 192 (1973) ............ccceeeeeeeeeeee 29, 30

- Vii -

Page

Levitt v. Committee for Pub. Educ. & Religious Liberty,

se cathe cite gg iit OER EIS “SESSA OTTER oa eS 16

Lynch v. Donnelly, 465 U.S. 668 (1984) ......ccccccccccccccccccceceeseseen. 25

Meek v. Pittenger, 421 U.S. 349 (1975)............. Snsttaitdsdeivahedenebeie 17

Mueller v. Allen, 463 U.S. 388 (1983) oo..ccccccccccccccccecccececscseseseen. 18

Nickols v. School Directors, 93 W. 61 (1879) .o.ccccccccccc0-05--.. 82a

O'Hara v. School Bd., 432 So. 2d 1356

PO me, GR FA, COD sceicsveemecneocrersneveosovsecesorasces 11, 82a

Pratt v. Arizona Bd. of Regents, 520 P.2d 514

Is MT aie hecialia icine icc 12, 8la

Resnick v. East Brunswick Township Bd. of Educ.,

343 A.2d 127 (N.J. Super. Ct. Ch. Div. 1975), aff d,

366 A.2d 345 (N.J. Super. Ct. App. Div. 1976), rev'd,

389 A.2d 944 (NJ. Sup. Ct. 1978) oooocccccccccccecccseceseseeeeeceeees 22

Resnick v. East Brunswick Township Bd. of Educ.,

389 A.2d 944 (N.J. Sup. Ct. 1978) ooo.cccecccecessees 4, 11, 22, 85a

Roemer v. Board of Pub. Works, 426 U.S. 736 (1976). 16, 17, 21

Rosenberger v. Rector & Visitors of the Univ. of Virginia,

Se tk te, een 21, 25

School Dist. of Abington Township v. Schempp,

ng RE ee 14

School Dist. of Grand Rapids v. Ball,

APR ts 16, 17

Sloan v. Lemon, 413 U.S. 825 (1973) .....ccccscccecececsesesssesceeseecesees 21

Smith v. County of Albemarle, 895 F.2d 953 (4th Cir.),

cert. denied, 493 U.S. 823 (1990)...........cccccocecsececsececceseceoees 24

Southside Estates Baptist Church v. Board of Trustees,

cog Bf RR ee 11, 82a

Southside Fair Hous. Comm. v. New York City,

ey ee Pe Ge Gy PED sevindecsciticretintecnsiccnccicrvinesninides 23

State ex rel. Gilbert v. Dilley, 145 N.W. 999

IN: RII techie cic dehacalcasehteendailcedbdeld niente 12, 84a

Tilton v. Richardson, 403 U.S. 672 (1971) «0.0.0.0... 3, 15, 16, 19,

22, 23, 30

Valley Forge Christian College v. Americans United

for Separation of Church & State, 454 U.S. 464 (1982) .....23

Wallace v. Washoe County Sch. Dist., 701 F. Supp. 187

Se eR SEINE dank phinceetardicsiesensnchaieich tai inhatabbdtansieniiiascinnein 28, 84a

Walz v. Tax Comm'n of New York, 397 U.S. 664

SIE iaiiscodeinda shes dehdlbdcabbacedaphnbcannaancecepsi 18, 21

Widmar v. Vincent, 454 U.S. 263 (1981) ............0. 3, 8, 9, 19, 20,

24, 27-28, 30

Witters v. Washington Dep't of Services for the

re ae Ny CII cictceicccticrensiotesevcriocerstanennerenies 17, 18

Wolman v. Walter, 433 U.S. 229 (1977) woocccccccccccccceeccceeceeeeeeeeees 16

Zobrest v. California Foothills Sch. Dist.,

Be a a I clasiicenibeescbeennconnincretineiss 17-19, 21, 22

STATE ATTORNEY GENERAL OPINIONS

1987 Arizona O.A.G. 54, 1987 WL 121394

I a a acctscamaeen 8la

1990 Report of the Va. Att’y Gen. 213, 1990

a a sesamiae 1, 8, 86a

1990 South Carolina O.A.G. No. 90-21,

1990 WL 482409 (Feb. 21, 1990) .....0...00.000.0..............29, 86a

Alaska O.A.G. F66-138-82, 1982 WL 43802

ae ESSERE eet Recreate oc eneedare ae ROR ne. eR 8la

+ =

Alaska O.A.G. No. 3 (April 22, 1966) .0......0:ccccccccscesseseeseeeeeeres 8la

Arizona O.A.G. No. 179-073, 1979 WL 23142

SUHaInETss Site SUUPIPINTN sthtecinedidddcascicetentenlaisistidisnenaiuaetanedbinincstediaisiasiebis 8la

California O.A.G. 52, 1993 WL 122644 (1993) ...0..0......... 13, 82a

lowa O.A.G. No. 80-1-2, 1980 WL 25904

eS ees Sshecidiheseasetnaaaaiaiebiaeiiatieiieteaiddehiaeainhaas 83a

lowa O.A.G. No. 82-4-17, 1982 WL 42728

eer ey MINE ieeciitneatnciatesicleaiiatatrieeiaian tina ca! 83a

1965 lowa O.A.G. 272 (June 14, 1965) o..ccccccccccceccecceceeeereeees 83a

Maine O.A.G. No. 80-43 (Feb. 22, 1980), available in

AUT 83a

Mississippi O.A.G. (May 9, 1984), available in WESTLAW

re IT varepcsiiaiasnecinntetbicadtceeiianainiiniheeteaiatealiaetc tesa 83a

Missouri O.A.G. No. 82 (Marshall) (Sep. 2, 1970) ...........0.-0-. 84a

Nevada O.A.G. No. 93-2, 1993 WL 361739

Re Meas ED deseiesieclatinsadcbistneciasherrtninnenenesciitmaneassinieseinasserun 84a

1963-64 New Mexico 0.A.G. 630-106 o.....ccccccccccccccescesceeeeeeees 85a

1957 Pennsylvania O.A.G. No. 5 (Sept. 12, 1957) ......c.cccccceces. 85a

Texas O.A.G. No. 0-5354 (July 14, 1943) ooococccccccccceseeeceeeees 86a

1978 Washington O.A.G. No. 10, 1978 WL 23890

I I ee 86a

63 Wisconsin O.A.G. 374 (1974) ......ccccccccccssesscesececseeeceeeeeeeeees 87a

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

FAIRFAX COUNTY SCHOOL BOARD,

Petitioner,

FAIRFAX COVENANT CHURCH,

Respondent.

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the Court of Appeals is reported at 17 F.3d 703

(4th Cir. 1994) and is reprinted in the Appendix to this Petition

(“Pet. App.”) at la. The first opinion of the District Court is re-

ported at 811 F. Supp. 1137 (E.D. Va. 1993) and is reprinted at

Pet. App. 20a. The second opinion of the District Court is unre-

ported but is reprinted at Pet. App. 31a. The opinion of the Virginia

Attorney General approving Fairfax County Public Schools Regu-

lation 8420 is reported at 1990 Report of the Va. Att’y Gen. 213,

1990 WL 511510, and is reprinted at Pet. App. 36a.

JURISDICTION

The judgment of the Court of Appeals was issued on February

28, 1994 (Pet. App. 1a). A timely petition for rehearing was denied

on March 31, 1994 (Pet. App. 16a). On April 8, 1994, the Court of

Appeals stayed the issuance of the mandate pending the filing of

this Petition for Writ of Certiorari (Pet. App. 18a). This Court has

junsdiction pursuant to 28 U.S.C. § 1254(1)

CONSTITUTIONAL PROVISIONS

AND REGULATIONS INVOLVED

This case involves the First Amendment of the United States

Constitution, as made applicable to the states through the Four

teenth Amendment. The First Amendment provides

Congress shall make no law respecting an establish

ment of religion, or prohibiting the free exercise thereof:

or abridge the freedom of speech, or of the press; or the

nght of the people peaceably to assemble, and to peti

tion the Government for a redress of grievances

The Church challenges the constitutionality of Fairfax County

Public Schools Regulation 8420. This regulation is reprinted in full

at Pet. App. 59a, but provides, in pertinent part, as follows

Churches/religious organizations servicing Fairfax

County citizens may be granted use of a school for as

many as five years. Those desiring to establish a long-

term use (other than one-time use) for church/religious

organizations shall set up an appointment with the co-

ordinator, community use of school facilities, for an

onentation on procedures. Church/religious groups may

be authorized usage after five years of use at increasing

rental rates until the ‘ull commercial rates become ef-

fective in the ninth year of use. Only one church may

have a contract for continuing use of a single school

during any school year.

Regulation §420(II(G) (Pet. App. 63a).

STATEMENT OF THE CASE

The principal question in this case is whether the Establishment

Clause of the First Amendment imposes any limitations on the terms

under which a church may lease public school facilities for its

regular Sunday worship services. The dispositive issues before the

Court of Appeals were (1) whether the lease of a public school

building for private worship services on a long-term or permanent

basis, at a rental rate substantially below market, amounts to direct

governmental support of religion in violation of this Court's Estab

lishment Clause holdings in cases like Committee for Public Educa-

tion & Religious Liberty v. Nyquist, 413 U.S. 756 (1973), and

Tilton v. Richardson, 403 U.S. 672 (1971). (2) whether, alterna-

tively, this Court’s decisions in Widmar vy. Vincent, 454 U.S. 263

(1981), and Lamb's Chapel v. Center Moriches Union Free School

District, 113 S. Ct. 2141 (1993), require that churches be permitted

to lease public school facilities on the same terms as secular com-

munity groups, regardless of the financial benefit that such use

might confer, and (3) whether a decision rejecting the application of

Tilton and Nyquist, and applying Widmar and Lamb's Chapel,

resolved an issue of first impression whose resolution was not clearly

foreshadowed such that the decision should be applied purely pro-

spectively under the doctrine articulated in Chevron Oil Co

Huson, 404 U.S. 97, 106-07 (1971).

Statement of Facts

There are 149 elementary and intermediate schools and 23 high

schools in Fairfax County, Virginia. These facilities traditionally

have been made available for use by the public on weekends and

weeknights when school is not in session. Student organizations and

youth groups, parent-teacher associations, and county employee

organizations are permitted to use the facilities without paying any

rental fee. Cultural and civic organizations, colleges and universi-

ties, and state and federal governmental groups pay a non-commer-

cial rate designed to reimburse the school system for the actual

costs occasioned by each use of the facilities. Private organizations

and businesses pay a commercial rental rate that is five times the

non-commercial rate and is intended to approximate market rental

fees for comparable facilities (Pet. App. 3a, 44a).

A. The History of Religious Use of School Facilities in

Fairfax County.

Churches and religious organizations have also been permitted

to rent school facilities in Fairfax County to conduct their weekly

worship services (Pet. App. 49a-50a). Churches that need a place of

worship can execute one-year renewable leases for the use of a

particular school facility during the school year (Pet. App. 63a). In

1992, there were 51 churches leasing school facilities on this basis

(Pet. App. 2a-3a).

Because the Establishment Clause of the First Amendment, and

Article I, § 16 of the Virginia Constitution,’ prohibit direct govern-

mental support of religion, the school system historically has imposed

use limitations on churches that have not been imposed on secular

groups. During the 1970s, churches that used the schools for their

regular worship services were charged the non-commercial rental

rate. However, each church that desired to use a school site for

longer than one year was asked to certify its progress toward the

acquisition of its own building. Notwithstanding that requirement,

some churches continually renewed their leases for ten years or

longer. At least one religious organization candidly informed the

school system that it had no plans to acquire a church of its own,

and that it intended to remain in the schools instead. Pet. App. 49a-

50a.

School officials became concerned that the non-commercial rental

rate created a financial incentive for churches to use the facilities on

a long-term or permanent basis, and they questioned whether this

practice was constitutional (Pet. App. 50a). Indeed, courts in other

states had held that long-term use of school facilities for religious

purposes was unconstitutional, even if churches paid market rent.

E.g., Resnick v. East Brunswick Township Bd. of Educ., 389 A.2d

944, 953, 958 (N.J. Sup. Ct. 1978). See Appendix N.

' Va. Const. art. I, § 16 provides, in pertinent part, that “the General Assembly

shall not . . . pass any law requiring or authorizing any religious society, or the

people of any district within this Commonwealth, to levy on themselves or

others, any tax for the erection or repair of any house of public worship, or for

the support of any church or ministry. . . .”

In response to these concerns, the school system changed the

policy in the late 1970s in order to limit church use to a maximum

of five years. As churches reached this five year ceiling, however,

they routinely requested, and were granted, lease extensions of any-

where from two weeks to an additional two years, as long as they

represented that they were making progress toward the acquisition

of their own facilities. Because this practice placed school officials

in the troublesome position of having to “question a church about

its private construction plans,” the five year limitation was aban-

doned and Regulation 8420 was created. Pet. App. 50a.

B. Regulation 8420.

Regulation 8420 was first adopted in 1982 (Pet. App. 56a,

59a). This new regulation eliminated the five year limitation on

church use and permitted those churches that desired to use the

schools on a long-term basis to do so (Pet. App. 63a). Churches

that leased public school facilities only occasionally, or on a short-

term basis of up to five years, were permitted to pay the same non-

commercial, cost-recovery rate as before (Pet. App. 50a). After nine

years of use, churches were deemed to be in the same category as

“private” users of the facilities, and were required accordingly to

pay the same commercial rental rate as private users (id.). In the

interim period between the fifth and ninth year of church use, the

rental rate was increased each year until it reached the commercial

rate (Pet. App. 45a, 50a). Although no legal authority in the coun-

try had sanctioned the long-term use of public facilities by churches,

school officials believed that charging a market rental rate for long-

term church use would obviate the concern that the school system

was subsidizing or promoting religion (Pet. App. 50a).

Regulation 8420 generated little controversy over the next ten

years, although the school system received complaints from the

public each year that churches “should not be utilizing taxpayer

facilities at all” (Pet. App. 51a). The market rate structure for long-

term church users successfully eliminated the need for school offi-

cials to question churches about their private construction plans

(Pet. App. 45a-46a, 50a). It also enabled school officials to explain

to those citizens who complained about church use that the school

system was not sponsoring or promoting religion in any way, and

that churches were required to pay for their use of the facilities (Pet.

App. 51a).

C. Comparative Frequency of Use by Religious and Non-

Religious Users Under Regulation 8420.

Although there were 8,500 applications for the use of school

facilities in 1991, the majority of the users were student groups or

youth organizations that were not required to pay any rental fee. By

contrast, there have been relatively few cultural and civic groups

that have rented the facilities. In the group comprised of private

users, cultural and civic groups and churches, for instance, churches

were the predominant users and accounted for the majority of all

rentals (Pet. App. 45a).

Churches have a need for regular, weekly housing that is sui

generis compared to the needs of non-church users. While most

users submit an application on each occasion they desire to rent the

facilities, a church enters into a one year lease agreement with the

school system for the use of a particular school site each week for

the duration of the school year (Pet. App. 45a, 63a, 79a). Between

1982 and 1992, the number of churches renting school facilities in

Fairfax County ranged from 38 to 91 (Pet. App. 58a). By contrast,

during the entire decade preceding this litigation, only 7 to 9 non-

church users needed to rent public school facilities more than a

dozen times in any given year (Pet. App. 57a).

D. Financial Benefits to Church Users.

The high cost of commercial real estate explains why so many

churches seek to rent public school facilities. In 1992, for example,

while in its eleventh year of use, Fairfax Covenant Church needed

enough space every Sunday to accommodate 800 worshippers from

8:00 a.m. to 1:00 p.m. For this purpose, the Church executed an

exclusive lease for the use of the facilities at West Springfield High

School, renting an auditorium, half a gymnasium, 14 classrooms

and the parking lot. The Church’s main worship services were con-

ducted in the auditorium, while other rooms were used for such

_ things as Sunday school, day care and prayer counseling (Pet. App.

45a, 79a-80a).

The commercial rental rate under Regulation 8420 to lease this

amount of space each Sunday was $1,510 (Pet. App. 46a). By

contrast, the non-commercial rate for this space was one-fifth of

that amount, or approximately $300.

Cost Comparison

The record was undisputed that the cost of renting comparable

space for four hours at private facilities large enough to accommo-

date 800 worshippers ranged from $2,100 to $6,600 (Pet. App.

47a-48a).

Naturally, the cost of purchasing land and of constructing

facilities comparable to those used by the Church at West Spring-

field High School would have been considerably greater. The mini-

mum cost to acquire land and to build comparable facilities “would

be approximately $5,832,800” (Pet. App. 54a). The cost alone of

constructing the facilities and providing for design, permits, engi-

neering and interior furnishings would be approximately $3,232,800

(Pet. App. 53a). Financing these costs over 30 years at a current

interest rate of 8.5% would yield the following monthly and weekly

expenses:

Amount Monthly Weekly (4 weeks/

— month)

Facilities

& Land $5,832,800 $44,849 $11,212

Facilities

Alone $3,233,800 $24,857 $ 6,214

In short, when the State permits an 800-member church to

house itself in a public school building on a long-term basis at a

cost of $300 per week, compared to the minimum $2,100 per week

to rent privately, or the $11,212 per week to finance a private

facility, the State relieves the church of an extraordinary expense

that the church otherwise would have incurred in housing its

congregation.

Course of Proceedings

In 1990, the Attorney General of Virginia specifically reviewed

Regulation 8420 and approved it as “narrowly drawn to strike the

constitutionally required balance between allowing the free exercise

of religion and avoiding the establishment or public support

thereof. . . .” 1990 Report of the Va. Att’y Gen. 213, 216 (Pet.

App. 42a). The Attorney General observed that, under this Court’s

holding in Widmar, churches could not be denied access to public

school facilities where the government had created a limited public

forum by permitting access to other groups (Pet. App. 39a). The

Attorney General went on to explain:

The inquiry does not end there, however, because the

establishment clause also prohibits the School Board

from supporting any particular religious group. The

increased rental rate imposed by Regulation 8420 is the

School Board’s method of attempting to avoid a level

of continuing support that would violate the establish-

ment clause ....

... While Regulation 8420 admittedly does not impose

a similar increase on nonreligious community organiza-

tions that have met in school buildings for five years,

such as scout troops or neighborhood civic associa-

tions, the use by such nonreligious groups poses no

danger of an establishment clause violation.

Pet. App. 40a-4 la.

The respondent, which began holding its worship services in the

public schools in Fairfax County in 1980, did not file this action for

injunctive relief and damages until May 1992. Jurisdiction in the

District Court was based on 28 U.S.C. §§ 1331 and 1343. Ruling

on cross-motions for summary judgment, the District Court held

that charging a market rate to long-term church users under Regula-

tion 8420 violated their Free Speech and Free Exercise rights, and

the court permanently enjoined the School Board from charging a

higher rate to long-term church users than would be charged to civic

and cultural groups (Pet. App. 29a, 34a). However, the District

Court denied the Church’s request for $287,000 in back-rent (Pet.

App. 5a). Holding that its ruling decided a matter of first impres-

sion whose resolution was not clearly foreshadowed, that retroac-

tive damage awards were not required to advance the purpose of the

rule, and that such damage awards would be inequitable, the Dis-

trict Court ruled that its decision should be applied purely prospec-

tively under the doctrine announced by this Court in Chevron Oil

Co. v. Huson, 404 U.S. 97, 106 (1971) (Pet. App. 33a-34a).

A three-judge panel of the Court of Appeals affirmed in part

and reversed in part. The panel held that charging a market rental

rate to long-term church users violated the Free Speech and Free

Exercise Clause, and was not required by the Establishment Clause.

The panel reasoned that, under this Court’s holdings in Widmar and

Lamb’s Chapel, the Establishment Clause is not violated when the

State pays the cost of maintaining a public forum available equally

for religious and non-religious discussion (Pet. App. 7a-8a, 10a).

The panel also found that, with 172 schools in Fairfax County,

there was no evidence that the Church’s weekly use of West Spring-

field High School “dominated the School Board’s rental capacity”

(Pet. App. 9a), or that it was “interpreted by the community to

constitute a religious endorsement by the School Board.” Pet. App.

lla.

The panel reversed the District Court’s decision to apply the

ruling in this case purely prospectively. While observing that the

doctrine of applying a decision “purely prospectively” survived this

Court’s elimination of “selective prospectivity” last term in Harper

v. Virginia Department of Taxation, 113 S. Ct. 2510, 2517 (1993),

the panel found that purely prospective treatment was not warranted

in this case. Without reference to any of the many state supreme

courts or attorneys general that had uniformly decided the Estab-

lishment Clause issue differently, the panel stated that “Widmar, a

1981 decision, unremarkably controls the decision here. . . .” (Pet.

App. 13a). The panel was “not impressed” with the District Court's

conclusion that retroactive application could subject the School Board

to $1.1 million in rent-reimbursement claims from long-term church

users, noting that the School Board had an operating budget of

$850 million (id.). The panel also opined that the Church’s claim,

and that of other claimants, would be subject to limiting defenses,

such as laches and the statute of limitations, so that it would not be

helpful to consider “other claimants who might benefit from the

decision” (id. ).

REASONS FOR GRANTING THE WRIT

This case lies at the crossroads of two separate First Amend-

ment principles. The Establishment Clause strictly prohibits the gov-

ernment from providing financial assistance to religious institutions,

whether in cash or in kind, if such assistance facilitates the practice

of religion. The Free Speech Clause requires that, once public prop-

erty has been opened for expressive activity by part or all of the

public, the government cannot discriminate against the users of that

property based on the content of their speech, unless such differen-

tial treatment is narrowly tailored to achieve a compelling state

interest.

The question at the heart of this case is how to apply these

principles when a church, which has been granted access to lease

public school facilities along with non-religious users, seeks to use

those facilities on a long-term basis as a substitute for its own house

of worship. Twenty states have interpreted the Establishment Clause

of the First Amendment, or their state constitutional counterparts,

as placing important limitations on this practice. The Court of Ap-

peals’ ruling below appears to reject such limitations, but the deci-

sion leaves school systems without adequate direction as to what

limitations, if any, apply.

I. THE DECISION BELOW CONFLICTS WITH THE

LAWS OF TWENTY STATES THAT HAVE RECOG-

NIZED CONSTITUTIONAL LIMITATIONS ON THE

USE OF PUBLIC SCHOOL FACILITIES FOR RELI-

GIOUS PURPOSES.

The legislatures, courts or attorneys general of twenty different

states have called for various limitations on the use of public school

facilities for religious purposes. The state of New York has prohib-

ited the use of public school facilities for religious purposes alto-

gether.’ The remaining states, by contrast, permit the use of public

schools for religious purposes during non-instructional time, but

they have generally prohibited long-term church use and have required

that churches pay a reasonable rental fee. These authorities are

collected in Appendix N to this Petition (Pet. App. 81a). A sam-

pling of the different approaches is set forth below.

The Supreme Court of New Jersey held in Resnick v. East

Brunswick Township Board of Educ., 389 A.2d 944 (N.J. Sup. Ct.

1978), that temporary use of public schools by churches that were

“diligently striving toward the procurement of their own houses of

worship” was permissible, id. at 958, provided the schools recov-

ered their out-of-pocket expenses occasioned by such use, id. at

960. The court refused to approve long-term use of school facilities

for religious purposes, however, explaining that “[a]t some point,

such continuous use will surely implicate the Board in the promo-

tion of religion.” Jd. at 958. The court observed that one church’s

continuous rental of public school facilities for a period of five

years was “approaching the outer bounds of reasonable time and

nearing the point of prohibited entanglement.” /d. at 959.

Similarly, in permitting the short-term use of public schools by

several religious organizations pending the construction of their own

church facilities, the Supreme Court of Florida cautioned in Southside

Estates Baptist Church v. Board of Trustees, 115 So. 2d 697 (Fla.

1959), that “if the use of the school buildings were permitted for

prolonged periods of time, absent evidence of an immediate inten-

tion on the part of the Church to construct its own building, we

think it could hardly be contemplated that the public school system

or its property could be employed in the permanent promotion of

any particular sect or denomination.” Jd. at 700; O’Hara v. School

Bd., 432 So. 2d 1356, 1358 (Fla. Dist. Ct. App. 1983) (following

Southside Estates, permitting school board to rent school facilities

to church groups at cost, during non-school hours and on a temporary

basis).

2 See Deeper Life Christian Fellowship v. Sobol, 948 F.2d 79, 83 (2d Cir.

1991) (holding that N.Y. Epuc. Law § 414 would not permit the use of public

school auditoriums for church worship services); see also Lamb's Chapel v.

Center Moriches Union Free Sch. Dist., 113 S. Ct. 2141, 2144 & n.2 (1993)

(noting that the church had not challenged the decision of the school district

denying it permission to use school facilities for Sunday morning services and

Sunday school, so that “the validity of this denial is not before us.”).

The Supreme Court of Arizona followed Southside Estates in

its decision in Pratt v. Arizona Board of Regents, 520 P.2d 514

(Ariz. 1974), authorizing Sun Devil Stadium at Arizona State Uni-

versity to be leased at fair market value for a series of private

religious services. The Court explained that “the twin keys to the

use of this stadium for the purpose stated are fair rental value and

the occasional nature of the use. . . . The lease of campus facilities

for occasional use, but not for fair market value, would violate the

provision of our Constitution as being an appropriation or applica-

tion of State property for religious purposes.” Jd. at 517.

The Supreme Courts of Iowa and Nebraska have also distin-

guished between long-term use of public school facilities by churches,

and occasional and temporary use, ruling that only the latter could

pass muster under the establishment clauses of their respective state

constitutions.’

The Attorneys General of the states of Alaska, Arizona, Cali-

fornia, Iowa, Maine, Mississippi, Nevada, South Carolina and Wis-

consin have similarly ruled that only temporary or occasional use of

public school facilities by churches is constitutionally permissible.

See Appendix N. State statutes in California, Illinois and Wisconsin

permit the use of public school facilities during non-school hours by

the public, but specifically limit churches to use on a “temporary”

basis.‘

> Davis v. Boget, 50 lowa 11, 15-16 (1878) (holding that the use of a public

school by religious groups on an occasional and temporary basis did not violate

the state Establishment Clause); State ex rel. Gilbert v. Dilley, 145 N.W. 999,

999-1000 (Neb. 1914) (holding that the occasional use of schools for private

religious purposes no more than 4 times a year for 5 years did not violate the

State Establishment Clause, noting that the result would be different “if the

schoolhouse had been used for religious meetings to such an extent as to make it

a place of worship. . . .”).

* Cat. Epuc. Cope § 40041(b)(3) (West 1993) (permitting use of school facili-

ties for “[t]he conduct of religious services for temporary periods, on a one-time

or renewable basis, by any church or religious organization which has no suit-

able meeting place for the conduct of the services. . . .”); Int. ANN. Stat. ch. 105,

para. 5/10-22.10 (Smith-Hurd 1993) (permitting temporary use of public school

facilities for Sunday school and religious meetings); Wis. Stat. ANN. § 120.13(17)

(West 1991) (permitting churches to use public school facilities on a temporary

basis if they pay a reasonable rental fee).

————7s

The California and Wisconsin statutes are particularly instruc-

tive. California’s Education Code permits churches to use public

school facilities for religious purposes for “temporary periods,” but

only if the church itself “has no suitable meeting place. . . .” Cat.

Epuc. Cope § 40041(b)(3) (West 1993). Moreover, the statute spe-

cifically requires that churches pay a rental rate that is “an

amount at least equal to the district’s direct costs.” Id. § 40043(c)

(West Supp. 1994). Local community groups, by contrast, are not

subject to these limitations. They can be permitted to use the facili-

ties for free, but in no event may they be charged a rental rate that

exceeds the school district’s direct costs. Jd. § 40043(b). California’s

Attorney General recently approved these limitations, explaining

that:

[B]y charging for the direct cost for facility use, the

State avoids any claim it is making an impermissible

gift to religion. By limiting use to unhoused sects the

government avoids permanent institutionalization of

religious use within a given school facility. Such an

occurrence might allow one to reasonably infer the state

has placed its imprimatur on a particular religion.

California O.A.G. 52, 1993 WL 122644 (1993).

Wisconsin’s statute similarly permits churches to rent public

school facilities on a temporary basis, provided they pay a reason-

able rental fee. Wis. Stat. ANN. § 120.13(17) (West 1991). By

contrast, school boards are statutorily required to permit non-partisan

and non-religious “citizen associations” to use the facilities “free of

charge,” and no temporary use limitation is imposed. /d. § 120.12(10)

(West 1991).

This Court should grant certiorari to resolve the split between

the decision by the Fourth Circuit below, and the prevailing legal

rules in each of the twenty states listed in Appendix N.

Il. THE COURT OF APPEALS HAS DECIDED AN

IMPORTANT CONSTITUTIONAL QUESTION WHICH

HAS NOT BEEN, BUT SHOULD BE, SETTLED BY

THIS COURT.

The long-term use of public school facilities by churches impli-

cates two important Establishment Clause concerns, neither of which

was adequately addressed by the Court of Appeals: whether the

State is providing a financial subsidy to the practice of religion; and

whether the State is placed in the position of appearing to endorse

religion. Justice Brennan alluded to these issues more than 30 years

ago in his concurrence in School District of Abington Township v.

Schempp, where he observed that the Establishment Clause might

permit “the allowance by government of temporary use of public

buildings by religious organizations when their own churches have

become unavailable because of a disaster or emergency,” but that

“(a] different problem may be presented with respect to the regular

use of public school property for religious activities.” 374 U.S. 203,

298 & n.74 (1963) (Brennan, J., concurring) (emphasis added).

The Court specifically reserved this issue in footnote 2 of Lamb's

Chapel. 113 S. Ct. at 2144 n.2. The time is now ripe to address it.

A. The Supreme Court Needs To Determine Which of Four

Rules Applies to the Use of Public School Property for

Religious Purposes.

There are at least four possible rules applicable to the long-term

use of public school property for private religious purposes:

(i) The Establishment Clause prohibits long-term use of public

school facilities by churches;

(ii) Long-term use is permissible, but the Establishment Clause

requires states to charge at least a cost-recovery rate,

(iii) Long-term use is permissible, but the Establishment Clause

requires states to charge a market rate; or

(iv) The Establishment Clause is simply not implicated by the

long-term use of public school facilities for religious purposes,

even if such use is permitted free of charge, so long as religious

and non-religious groups are treated equally.

The Court should grant certiorari to resolve which of these

rules is constitutionally compelled. To do this, the Court needs to

address the following issues.

B. Does the Regular Use of Public School Facilities for Pri-

vate Religious Purposes Without Adequate Consideration

Unconstitutionally Advance Religion?

This Court has steadfastly maintained that direct governmental

assistance to religion violates the Establishment Clause. Everson v.

Board of Educ., 330 U.S. 1, 16 (1947) (“No tax in any amount,

large or small, can be levied to support any religious activities or

institutions, whatever they may be called, or whatever form they

may adopt to teach or practice religion.”). Indeed, the Court has

specifically held that the State may not pay for the construction or

maintenance of the physical buildings in which religion is taught or

practiced because assistance of this sort directly benefits the reli-

gious mission of the recipient. Tilton v. Richardson, 403 U.S. 672,

683 (1971); Committee for Pub. Educ. & Religious Liberty v.

Nyquist, 413 U.S. 756, 777 (1973).

In Tilton, the Supreme Court upheld the constitutionality of the

Higher Education Facilities Act of 1963, which permitted federal

construction grants to be made to both secular and church-related

colleges and universities, as long as the buildings constructed with

such money were not used for religious purposes. 403 U.S. at 679-

80. The Court struck down a provision of the Act, however, which

eliminated this religious use restriction after 20 years, explaining

that “[ijf, at the end of 20 years, the building is, for example,

converted into a chapel or otherwise used to promote religious inter-

ests, the original federal grant will in part have the effect of advanc-

ing religion.” Jd. at 693.

The Court in Nyquist similarly struck down a New York state

law providing for direct money grants to qualifying non-public

schools, including parochial schools, for the “maintenance and re-

pair” of their facilities and equipment. 413 U.S. at 774-80. The

Court reasoned that the aid would be used to improve facilities

dedicated to both religious as well as secular purposes and that no

safeguard could possibly prevent such aid from advancing religion.

Id. at 779 & n.36. “New York's maintenance and repair provisions

violate the Establishment Clause because their effect, inevitably, is

to subsidize and advance the religious mission of sectarian schools.”

Id. at 789-80 (emphasis added). |

The Court has distinguished between the provision of buildings

and financial aid that promote the religious mission of sectarian

institutions, as in Tilton and Nyquist, and the provision of secular

aid that only incidentally or indirectly benefits the institution. Thus,

the provision of police and fire protection to a religious institution

does not violate the Establishment Clause.’ Other forms of govern-

mental aid to the secular aspects of a religious institution are also

permitted in some cases, provided that the aid is not used for any

religious purposes,° and provided that the recipient is not so “perva-

S E.g., Roemer v. Board of Pub. Works, 426 U.S. 736, 747 (1976) (plurality

opinion).

6 E.g., Bowen v. Kendrick, 487 U.S. 589, 614 (1988) (holding that Adolescent

Family Life Act, providing federal grants for services and research in the area of

adolescent sexual relations and pregnancy, did not on its face violate the Estab-

lishment Clause, but remanding for examination of the constitutionality of par-

ticular applications); Committee for Pub. Educ. & Religious Liberty v. Regan,

444 US. 646, 659 (1980) (upholding state statutory scheme providing direct

cash reimbursement from state funds to nonpublic schools for state-required

testing and reporting, but observing that “the outcome would likely be different

were there no effective means for insuring that the cash reimbursements would

cover only secular services.”); Board of Educ. v. Allen, 392 U.S. 236, 244

(1968) (upholding New York statute requiring public school authorities to lend

textbooks free of charge to public and private secondary school students, since

only secular textbooks could be provided); but see School Dist. of Grand

Rapids v. Ball, 473 U.S. 373, 394 (1985) (invalidating state education programs

financing secular classes for nonpublic school students taught by public school

employees on the premises of private schools); Wolman v. Walter, 433 U.S. 229,

244, 247-48, 249 (1977) (upholding the provision of off-campus diagnostic and

therapeutic services for parochial school students, but striking down the provi-

sion of instructional materials and equipment incapable of being diverted to

religious uses); Levitt v. Committee for Pub. Educ. & Religious Liberty, 413

U.S. 472, 480 (1973) (prohibiting state reimbursement of private schools for

state required testing and record keeping costs where “no attempt is made under

cont'd

“pervasively sectarian” that aid to the secular aspects of its pro-

gram “inescapably results in the direct and substantial advance-

ment of religious activity... .”’

By contrast, “aid to a religious institution unrestricted in its

potential uses, if properly attributable to the State, is ‘clearly pro-

hibited by the Establishment Clause’ because it may subsidize the

religious functions of that institution... .” Wéitters v. Washington

Dep’t of Services for the Blind, 474 U.S. 481, 489 (1986) (citation

omitted). Thus, “even a general welfare program may have specific

applications that are constitutionally forbidden under the Establish-

ment Clause.” Zobrest v. California Foothills School District, 113

S. Ct. 2462, 2473 (1993) (BLACKMUN, J., joined by SOUTER,

J., dissenting). “The question in each case must be whether the

effect of the proffered aid is ‘direct and substantial,’ or indirect and

incidental.” School Dist. of Grand Rapids v. Ball, 473 U.S. at 394

(quoting Nyquist, 413 U.S. at 784-785 n.39).

ad continued

the statute, and no means are available, to assure that internally prepared tests

are free of religious instruction.”); Lemon v. Kurtunan, 403 U.S. 602, 619-21

(1971) (barring states from supplementing the salaries of teachers of secular

subjects in private schools on the ground that policing such recipients to ensure

that they do not teach religion would amount to an unconstitutional entanglement

of church and state) [hereinafter Lemon /].

’ Meek v. Pittenger, 421 U.S. 349, 366 (1975) (striking down the provision of

secular maps, charts and laboratory equipment to church-related non-public schools

because the “[sJubstantial aid to the educational function of such schools, ac-

cordingly, necessarily results in aid to the sectarian school enterprise as a whole.”);

see Aguilar v. Felton, 473 U.S. 402, 412 (1985) (holding that the use of federal

funds to pay the salaries of public employees who teach secular subjects in

private schools violated the Establishment Clause by creating an excessive en-

tanglement of church and state, since the aid was provided in a “pervasively

sectarian” environment, and ongoing public inspection was required to insure

that no religious message was conveyed), Roemer, 426 U.S. at 759-60 (uphold-

ing financial assistance to church-affiliated colleges that were not “pervasively

sectarian,” where the statute prohibited the use of funds for “sectarian pur-

poses”); Hunt v. McNair, 413 U.S. 734, 744 (1973) (upholding aid to church-

affiliated college because the aid was limited to the construction of secular

buildings only, the college was not “pervasively sectarian,” and “every lease

agreement must contain a clause forbidding religious use and another allowing

inspections to enforce the agreement.”).

The Court's decision last term in Zobrest provides a useful

contrast to this case. Five justices held that it did not violate the

Establishment Clause for the State to provide a sign-language inter-

preter to a hearing-impaired student who chose to attend a parochial

school. 113 S. Ct. at 2469. Three reasons were offered for this

conclusion. First, the interpreter was not provided directly to the

parochial school, but to the student and his parents, who only then

made a purely private decision that the student should attend a

religious school. /d. at 2467. In this case, by contrast, each church

tenant enters into a one year lease agreement with the school sys-

tem, so that the benefit of a low rental rate is realized directly by the

church.*

Second, the provision of an interpreter to the student in Zobrest

created “no financial incentive for parents to choose a sectarian

school” such that the interpreter’s presence there could be “attrib-

uted to state decisionmaking.” 113 S. Ct. at 2467. In this case, by

contrast, it was undisputed that the non-commercial rental rate is

* Cf. Witters, 474 U.S. at 488 (holding that state rehabilitation aid payments to

a blind student who chooses to attend a Christian college does not unconstitu-

uionally advance religion because “the fact that aid goes to individuals means

that the decision is made by the individual, not by the State.”); Mueller v. Allen,

463 U.S. 388, 399 (1983) (upholding Minnesota statute providing state income

tax deduction for public and private school expenses for tuition, transportation

and secular textbooks, noting that “by channeling whatever assistance it may

provide to parochial schools through individual parents, Minnesota has reduced

the Establishment Clause objections to which its action is subject.”); Walz v. Tax

Comm'n of New York, 397 U.S. 664, 676-77 (1970) (upholding tax exemption

granted in all SO states for property devoted to religious, educational or chari-

table purposes); Board of Educ. v. Allen, 392 U.S. at 244 (upholding provision

of free secular textbooks, explaining that “[b]ooks are furnished at the request of

the pupil and ownership remains, at least technically, in the State. Thus no funds

or books are furnished to parochial schools, and the financial benefit is to

parents and children, not to schools.”); Everson, 330 U.S. at 17-18 (holding that

the provision of free bus transportation to public and private school students aids

their parents directly, and provides no direct financial benefit to parochial schools);

but see Nyquist, 413 U.S. at 777, 791-93 (striking down state tuition reimburse-

ment scheme for parents of private school students despite that the benefits were

provided directly to the parents, rather than to the schools, noting that, unlike the

property tax exemption upheld in Walz, there was no historical precedent for

providing tax benefits to parents who send their children to parochial schools).

significantly lower than the market rate for comparable facilities, a

disparity that creates an enormous financial incentive for churches

to use school facilities on a long-term basis (Pet. App. 49a-50a). A

reasonable observer would correctly conclude that a church that

makes its home in the public schools on a long-term or permanent

basis is doing so precisely because the State makes that option

financially attractive.

Lastly, the Zobrest majority noted that providing an interpreter

to a student who chooses to attend a parochial school would not

relieve the religious institution “of an expense that it otherwise

would have assumed in educating its students.” /d. at 2469. In this

case, by contrast, it was undisputed that long-term use of public

school facilities at the non-commercial rates would relieve an 800-

member church like the respondent of a monumental expense,

amounting to hundreds of thousands of dollars a year. See Cost

Comparison, supra at p.7. In short, the three Establishment Clause

dangers that the Court found absent in Zobrest are starkly apparent

in this case.

Of course, the State does not promote or subsidize religion

every time it permits some kind of religious activity to occur in a

public building. Thus, the Court in Widmar described as “merely

‘incidental’ ” the benefit to college students of being able to meet on

campus to discuss religion and to pray. 454 U.S. at 273: accord

Board of Educ. v. Mergens, 496 U.S. 226, 248-53 (1990) (holding

that the Establishment Clause was not violated by permitting high

school students to meet during non-instructional time to discuss

religion and pray). The same description was used in Lamb’s Chapel,

where a church group sought to rent a high school auditorium to

show a six-part film series about parenting. 113 S. Ct. at 2148

(“Any benefit to religion or to the Church would have been no more

than incidental.”’).

This case obviously falls somewhere in between the poles of the

Court’s holdings in Widmar and Lamb’s Chapel, on the one hand,

and Tilton and Nyquist, on the other. For when the State permits a

church to lease public school facilities on a long-term basis on

favorable financial terms that relieve the church of hundreds of

thousands of dollars a year in housing costs, the State unquestion-

ably confers a direct financial benefit on the church that can hardly

be described as ‘merely incidental.’ E.g., Nyquist, 413 U.S. at 756

(invalidating “maintenance and repair” grants that “made it possible

for a sectarian elementary or secondary school to finance its entire

‘maintenance and repair’ budget from state tax-raised funds.”). Con-

cerns about this sort of assistance were foremost in the minds of the

drafters of the Establishment Clause, because “{t}he imposition of

taxes to pay ministers’ salaries and to build and maintain churches

and church property aroused their indignation.” Nyquist, 413 U.S.

at 777 n.33 (quoting Everson, 330 U.S. at 11) (emphasis added).

In determining whether this practice amounts to a financial sub-

sidy, two questions must be answered:

1. Must Public Schools Charge a Cost-Recovery Rate

to Regular Church Users?

The Court needs to determine first whether churches must pay a

cost-recovery rate for their use of public school facilities. The an-

swer to this question is easy. If the State were were not required to

be reimbursed for the cost of school supplies, utilities, janitorial

services, and salaries of school personnel required to be present

when school facilities were used for religious purposes, this would

be the most direct and obvious form of a religious subsidy. Cf.

Nyquist, 413 U.S. at 777 (“If the State may not erect buildings in

which religious activities are to take place, it may not maintain such

buildings or renovate them when they fall into disrepair.”). Accord-

ingly, authorities in Alaska, Arizona, California, Florida, Maine,

Missouri, Nevada, New Jersey, New Mexico, Pennsylvania, Texas,

Virginia, Washington and Wisconsin have all agreed that churches

must pay at least a cost-recovery rate to rent school facilities for

their worship services. See Appendix N

The panel decision below confuses the law in this area, how-

ever, because it sends conflicting messages. On the one hand, the

panel ruled that there would be no unconstitutional subsidy of reli-

gion in this case because the non-commercial rental rate “is de-

signed to reimburse the School Board for any expense incurred by

the use of the school” (Pet. App. 10a). On the other hand, the panel

found that, under Widmar, the Establishment Clause is not offended

as long as churches are given access to public facilities on “equal

terms” with other groups (Pet. App. 10a). That statement not only

aaa ares

leaves the basis of the panel’s ruling in question, but, under the

latter rationale, “it takes little imagination to perceive the extent to

which States might openly subsidize [religious institutions] under

such a loose standard of scrutiny.” Nyquist, 413 U.S. at 779.

Indeed, the fact that the government subsidizes secular entities

has never justified subsidies to religious groups on “equal terms.”

In fact, one member of the three-judge panel that drafted the opinion

below authored another opinion two weeks later that was based

precisely on this point. See Rosenberger v. Rector & Visitors of the

Univ. of Virginia, 18 F.3d 269 (4th Cir. 1994) (Opinion of Ervin,

C.J.) (holding that it would violate the Establishment Clause for the

University of Virginia to permit student activity funds to be used to

defray the costs of a student-run religious publication, even though

non-religious student publications received such funding).

2. Must Long-Term Church Users Pay a Market Rental

Rate?

Assuming that the Establishment Clause requires that churches

pay a cost-recovery rate to lease public school facilities for their

weekly worship services, the second critical question is whether

long-term or permanent use at a rent substantially below-market

improperly advances religion. That inquiry involves questions of

both subsidy and endorsement.

* E.g., Roemer, 426 U.S. at 747 (“The State may not, for example, pay for what

is actually a religious education, even though it purports to be paying for a secular

one, and even though it makes its aid available to secular and religious institu-

tions alike.”); Sloan v. Lemon, 413 U.S. 825, 834 (1973) (“[V]alid aid to nonpublic,

nonsectarian schools would provide no lever for aid to their sectarian counter-

parts."); Zobrest, 113 S. Ct. at 2473 (BLACKMUN, J., joined by SOUTER, J.,

dissenting) (“[E}ven a general welfare program may have specific applications

that are constitutionally forbidden under the Establishment Clause.”); Walz v. Tax

Comm'n of New York, 397 U.S. 664, 708-09 (1970) (“That is a major difference

between churches on the one hand and the rest of the nonprofit organizations on

the other. Government could provide or finance operas, hospitals, historical soci-

eties, and all the rest because they represent social welfare programs within the

reach of the police power. In contrast, government may not provide or finance

worship because of the Establishment Ciause. . . .”) (Douglas, J., dissenting).

a. Is a Market-Rate Necessary to Avoid Subsidiz-

ing Long-Term Religious Use of Public Facilities?

It was undisputed in this case that if the school system were to

charge a cost-recovery rate to an 800-member church seeking to use

school facilities as a substitute for its own, the church would be

relieved of nearly $2,000 per week compared to the cost of private

rental, and nearly $11,000 per week compared to the cost of private

construction. See Cost Comparison, supra at p.7. When a cost-

recovery rate is substantially below the prevailing market rate for

private church housing, as in this case, there is an ineluctable finan-

cial incentive for churches to delay or forego building their own

facilities, as happened in Fairfax County prior to the institution of

the market rate structure (Pet. App. 49a-50a)."° The government

would thus be relieving the church of a significant “expense that it

otherwise would have assumed” in housing itself. Zobrest, 113 S.

Ct. at 2469.

Moreover, this Court’s prior decisions strongly suggest that

permitting valuable governmental property to be used for private

religious services for less than fair market value is tantamount to

direct financial assistance to religion. The Court in Tilton, for in-

stance, endorsed a federal law that required church-related colleges

that used federally funded facilities for religious purposes to forfeit

damages back to the United States in an “amount equal to the

proportion of its present value that the federal grant bore to the

original cost of the facility.” Jd. at 675, 679-80 (emphasis added).

This market rate approach was subsequently invoked by the Court

in Hunt v. McNair, 413 U.S. 734 (1974), which upheld a South

Carolina statute authorizing aid for the construction of secular col-

East Brunswick Township Bd. of Educ., 343 A.2d 127, 131 (N.J. Super. Ct. Ch.

Div. 1975) (“Religious bodies, unlike most other nonprofit organizations, main-

tain buildings, that is, houses of worship. The word ‘church’ denotes both the

building and the institution. As the Nativity Evangelical Lutheran pastor con-

ceded in testimony, a congregation which has public facilities available to it is

‘off to a good start.’ It can thus postpone its church or temple building program

for years, a substantial credit between the nominal rental it pays and what it

would have paid as rental for comparable private facilities.”), aff'd, 366 A.2d 345

(N.J. Super. Ct. App. Div. 1976), rev'd, 389 A.2d 944 (N.J. Sup. Ct. 1978).

lege facilities. Although the statute was held not to violate the

Establishment Clause because it prohibited the use of any state

funded buildings for religious purposes, one provision of the law

permitted the restriction on religious use to be lifted if the property

were transferred to a purchaser at a judicial sale. 413 U.S. at 740

n.4. The Court invoked Tilton’s discussion of fair market value in

explaining why this provision was not constitutionally infirm:

Because some other religious institution bidding for the

property at a judicial sale could purchase the property

only by outbidding all other prospective purchasers,

there is only a speculative possibility that the absence

of a use limitation would ever afford aid to religion.

Even in such an event, the acquiring religious institu-

tion presumably would have had to pay the then fair

value of the property.

413 US. at 744 n.6 (emphasis added).

Valley Forge Christian College v. Americans United for Sepa-

ration of Church & State, 454 U.S. 464 (1982) involved a similar

Establishment Clause challenge to a gratuitous transfer of surplus

federal property to a religious institution. Although the majority

decided the case on other grounds, Justice Brennan, joined by Jus-

tices Marshall and Blackmun, stated that “it is entirely clear from

Tilton that if the facility is and was used for sectarian purposes, the

Government was required to obtain full market value at the time

such use commences.” /d. at 512 n.19 (Brennan, J., dissenting)

(emphasis added).

These authorities amply support the School Board’s conclusion

that market rent must be charged to churches that seek to use public

school facilities on a long-term or permanent basis as a substitute

for their own. State Attorneys General in Alaska, Arizona, Maine

and Washington have reached similar conclusions, incorporating a

fair rental value requirement into their policies concerning the use

of public school facilities by churches. Appendix N; see also

Southside Fair Hous. Comm. v. New York City, 928 F.2d 1336,

1348 (2d Cir. 1991) (discussing fact that sale of land to Hasidim at

market value was helpful in determining whether the sale had the

effect of advancing religion).

b. Is a Market-Rate Necessary to Avoid Creating

the Appearance of Official Endorsement of Long-

Term Religious Use?

In addition to financially subsiding religious organizations, per-

mitting long-term or permanent use of public facilities for private

worship services runs the risk of creating an appearance that the

government is officially endorsing religion. In County of Allegheny

v. A.C.L.U., for instance, a majority of this Court held that the

display of a creche for six weeks on the main staircase of the county

courthouse violated the Establishment Clause, notwithstanding the

fact that other sorts of displays had been permitted there in the past.

492 U.S. 573, 599-600 & n.50 (1989) (opinion of BLACKMUN,

J., joined by Brennan, Marshall, STEVENS and O’CONNOR, J.J.).

The Court reasoned that “[n]o viewer could reasonably think that

[the creche] occupies this location without the support and approval

of the government.” /d. at 599-600."

Similarly, when a church holds its weekly worship services in

the same public school building week after week, year after year,

the risk increases proportionately that the public will come to asso-

ciate a particular church with a particular public school. The Court

of Appeals failed to address this question because it analyzed the

issue in terms of whether the respondent’s use of one of the School

Board’s 172 public school facilities “dominated the School Board's

rental capacity.” Pet. App. 9a. Although nearly a third of the School

Board’s facilities were leased for religious purposes by churches in

1992, the question is not whether sufficient rental space remains for

other users, but whether a reasonable observer would associate a

particular church’s long-term use of a particular school site as

'! Although the Court noted that the forum in question had not been opened for

expressive activity to the same extent as the college campus in Widmar, 492 U.S.

at 600 n.50, lower courts have found that an unconstitutional appearance of offi-

cial endorsement can arise even in a designated public forum. E.g., Smith v.

County of Albemarle, 895 F.2d 953, 959-60 (4th Cir.) (holding that privately

sponsored creche displayed on the front lawn of the county administrative build-

ing created an impermissible appearance of official “endorsement” of religion,

despite the fact that the lawn was a designated public forum), cert. denied, 493

U.S. 823 (1990).

connoting official sponsorship or support. When “judged accord-

ing to the standard of a ‘reasonable observer,’ ” County of Allegh-

eny, 492 U.S. at 620, a church that makes its home in the public

schools on a long-term or permanent basis at a below-market rent

would appear to be doing so precisely because the State makes

that option financially appealing.

Many states have responded to this difficulty by barring long-

term use of public school facilities by churches altogether. See

Appendix N. The Fairfax County School Board sought instead to

steer a middle course by eliminating the financial incentive that a

below-market rental rate created for churches to forego private con-

struction in favor of housing their ministries permanently in the

schools. To be sure, the appearance of official endorsement that

accompanies long-term or permanent use of school facilities may

not be completely eliminated, because churches can still use the

schools on a long-term basis. A market rate structure, however,

eliminates the financial incentive to prefer public housing over pri-

vate accommodations. It also permits a school board to assure those

citizens opposed to the use of school property for religious purposes

that the school system is “not sponsoring or promoting church use

in any way, and that churches [are] required to pay for their use of

the facilities.” Pet. App. 51a. By accommodating church users as

much as possible within the confines of the Establishment Clause,

this approach significantly reduces the potential for serious political

divisiveness that this Court has previously recognized as an evil

associated with governmental assistance to religion.’* See also

Rosenberger v. Rector & Visitors of the Univ. of Virginia, 18 F.3d

269 (4th Cir. 1994) (citing “potential for political divisiveness

related to religious belief and practice” as reason for prohibiting

use of student activity funds to defray the costs of a student reli-

gious publication at the University of Virginia).

2 E.g., Lemon, 403 U.S. at 622-24; Nyquist, 413 U.S. at 794-97; Lynch v.

Donnelly, 465 U.S. 668, 684 (1984); Aguilar, 473 U.S. at 416-17 (Powell, J.,

concurring); Lee v. Weisman, 112 S. Ct. 2649, 2655-56 (1992) (Opinion of

KENNEDY, J.) (observing “potential for divisiveness” in school principal's

choice of a rabbi to deliver prayers at a high school graduation ceremony).

a a

Ill. THE COURT OF APPEALS ERRED IN APPLYING

ITS RULING RETROACTIVELY.

In Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), this Court

announced a three-factor test for determining when judicial deci-

sions may be applied prospectively:

First, the decision to be applied nonretroactively must

establish a new principle of law, either by overruling

clear past precedent on which litigants may have relied,

or by deciding an issue of first impression whose reso-

lution was not clearly foreshadowed. Second, it has

been stressed that “we must . . . weigh the merits and

demerits in each case by looking to the prior history of

the rule in question, its purpose and effect, and whether

retrospective operation will further or retard its opera-

tion.” Finally, we have weighed the inequity imposed

by retroactive application, for “where a decision of this

Court could produce substantial inequitable results if

applied retroactively, there is ample basis in our cases

for avoiding the ‘injustice or hardship’ by a holding of

nonretroactivity.”

404 U.S. at 106-07 (citations omitted).

Last term, a majority of this Court held that a newly announced

rule of federal law must be given full retroactive effect in all civil

cases if the rule was applied to the parties in the case in which it

was announced, even if the propriety of applying the rule retroac-

tively was not previously litigated. Harper v. Virginia Dep’t of

Taxation, 113 S. Ct. 2510, 2517 (1993). While eliminating the

doctrine of “selective prospectivity,” the Court did not abandon the

application of Chevron Oil in cases, like the present one, where the

question is whether to apply the decision “purely prospectively.”

See, e.g., id. at 2524-25 (KENNEDY, J., joined by White, J., con-

curring); id. at 2528 (O’CONNOR, J., joined by REHNQUIST,

C.J., dissenting) (“In any event, the question of pure prospectivity is

not implicated here.”). Thus, the Court of Appeals in this case

properly recognized that purely prospective treatment of judicially

created rules remains available (Pet. App. 13a).

The Court of Appeals erred, however, in reversing the District

Court’s ruling that the first and third Chevron Oil factors were

satisfied in this case.'’ First, the panel wrongly concluded that “the

holding in Widmar, a 1981 decision, unremarkably control[led] the

decision here.” Pet. App. 13a. Although the District Court acknowl-

edged that various state courts had decided the Establishment Clause

issue differently (Pet. App. 41a), the Court of Appeals’ opinion did

not even mention the existence of those contrary authorities. Such

an omission is significant because this case is unquestionably the

first in the country to uphold the long-term use of public schools for

religious purposes, much less long-term use at substantially below-

market rent.

Moreover, as the District Court acknowledged (Pet. App. 32a),

finding that a decision “is controlled by” the principles articulated

in a prior case is not the same as finding that the decision was

“clearly foreshadowed.” E.g., Florida v. Long, 487 U.S. 223, 230-

32 (1988) (holding that a 1978 decision striking down employee

persion fund plans requiring unequal contributions from men and

women, based on the generalization that women live longer than

men, did not “clearly foreshadow” a 1983 decision striking down

pension fund plans paying differential benefits to men and women

based on the same gender-based assumption). A decision may

announce a “new principle of law” for Chevron Oil purposes if the

rule was “sufficiently debatable” in advance. Arizona Governing

Comm. for Tax Deferred Annuity & Deferred Compensation Plans

v. Norris, 463 U.S. 1073, 1109 (1983) (O’CONNOR, J., concur-

ring). “(T]he fact that a court says that its decision is within the

‘logical compass’ of an earlier decision, or indeed that it is ‘con-

trolled’ by a prior decision, is not conclusive for purposes of decid-

ing whether the current decision is a ‘new rule’... .” Butler v.

McKellar, 494 U.S. 407, 417 (1990). This is especially true where

‘3 The Court of Appeals did not dispute the District Court’s conclusion that

the second Chevron Oil factor would be satisfied here (Pet. App. 13a). The

District Court found support for this conclusion in American Trucking Associa-

tions v. Smith, 496 U.S. 167, 182-83 (1990) (Opinion of O'CONNOR, J., joined

by REHNQUIST, C.J., White and KENNEDY, J.J.) (reasoning that the principle

of treating out-of-state truckers equally with in-state truckers did not require a

retroactive tax refund). Pet. App. 33a.

the Supreme Court in the prior case “limited the holding to the fact

pattern then before us.” Florida v. Long, 487 U.S. at 231.

The Widmar majority did just that, stating that “[t}he basis for

our decision is narrow. Having created a forum generally open to

student groups, the University [may not] enforce a content-based

exclusion of religious speech.” Widmar, 454 U.S. at 277. Nothing

in Widmar even remotely suggested that public schools, having

granted access to religious groups, could permit themselves to

become houses of worship on a long-term or permanent basis,

much less at a rental rate that saves a church hundreds of thou-

sands of dollars a year in housing expenses it otherwise would

have incurred. As one federal district court has observed, “{t}here

is no suggestion in Widmar that the decision should be broadly

interpreted to encompass a situation similar to the one at bar in

which [the church] seeks to use the school’s ‘public forum’ policy

as a basis for commencing regular and permanent church services

at the [high school].” Wallace v. Washoe County Sch. Dist., 701 F.

Supp. 187, 191 (D. Nev. 1988). Indeed, the novelty of this issue is

demonstrated by the fact that this Court only last term reserved

comment on whether churches could be denied access altogether

to conduct their private worship services in a public high school

auditorium. Lamb’s Chapel, 113 S. Ct. at 2144 n.2.

With respect to the third Chevron Oil factor, whether retroac-

tive application would be inequitable, the Court of Appeals erred by

failing to consider the financial impact that its holding will have on

school boards that have regulated church use of school property in

reliance on prior Establishment Clause authorities. Justice Souter

recognized in his opinion in James B. Beam Distilling Co. v. Geor-

gia, that the elimination of “selective prospectivity” would mean

that non-parties would be subject to retroactive application of a

new rule of law even though they might suffer greater hardship than

the party in the rule-announcing decision against whom the rule was

first applied. 111 S. Ct. 2439, 2448 (1991) (Opinion of SOUTER,

J., joined by STEVENS, J.). In response to that concern, he sug-

gested that, in undertaking Chevron Oil analysis in pure prospectivity

cases, the interests of non-parties should be taken into account:

“the general enquiry permits litigants to assert, and the courts to

consider, the equitable and reliance interests of parties absent but

similarly situated.” Jd. at 2448.

The panel below refused to consider the financial impact of a

retroactive ruling. In addition to Fairfax County, which alone faces

back-rent claims of $1.157 million from long-term church users

(Pet. App. 57a), all other school systems in Virginia that have

adopted market rate structures for long-term church users will be

similarly exposed to retroactive damage awards. A retroactive hold-

ing also affects those jurisdictions that, like South Carolina, have

advocated time limits on church use of public school facilities.”* If

these policies forced churches to rent privately, or to finance private

construction and land acquisition, those churches can now seek to

recover damages from school boards if their private housing expenses

exceeded what it would have cost them to use the schools.

The prospect of such retroactive liability is precisely what ani-

mated this Court’s prospectivity decision in Lemon v. Kurtzman,

411 U.S. 192 (1973) (“Lemon IT’), a case relied on by the District

Court (Pet. App. 32a), but not mentioned by the Court of Appeals.

In Lemon II, this Court held that its decision in Lemon I, which

invalidated certain forms of secular aid to parochial schools, should

not be applied retroactively. Jd. at 205-06. Lemon I was not “clearly

foreshadowed,” according to the Court, because the lower courts

had been split over the legality of the secular aid scheme at issue

there, and the Justices themselves were badly divided on the matter.

Id. at 206. The Court also acknowledged “that we can only dimly

perceive the lines of demarcation in this extraordinarily sensitive

area of constitutional law.” Id. (quoting Lemon I, 403 U.S. at 612).

“{E]}ven the clarity of hindsight is not persuasive that the constitu-

tional resolution of Lemon I could be predicted with assurance

sufficient to undermine [the State’s] reliance on [the aid statute].”

Id. at 207. The Court pointed out that government officials do not

have the luxury to “stay their hands until newly enacted state pro-

grams are ‘ratified’ by the federal courts, or risk draconian, retro-

spective decrees should the legislation fall.” 411 U.S. at 207-08.

See 1990 South Carolina O.A.G. No. 90-21, 1990 WL 482409 (Feb. 21,

1990) (“[U]nder the Establishment Clause, a school district could lawfully per-

mit a church to use school property on Sundays provided that such usage did not

conflict with school purposes and provided that the public facility was not a

substitute for a permanent religious facility. . . .”).

Those remarks are especially apropos of the dilemma faced by

the nation’s school boards in the present context. If school systems

bar church access to public school facilities, or limit it to a fixed

number of years, they face a Widmar-type access challenge under

the Free Speech Clause. If they charge a below-cost or below-

market rental rate to churches that seek to rent school facilities on a

long-term or permanent basis, they face an Establishment Clause

challenge under cases like Tilton and Nyquist. Until this Court

definitively resolves the law in this area, school officials must con-

tinue to choose between one of these uncertain and financially peril-

ous options.

CONCLUSION

For the foregoing reasons, the Petition for Writ of Certiorari

should be granted.

Respectfully submitted,

FAIRFAX COUNTY SCHOOL BOARD

Thomas J. Cawley

(Counsel of Record)

Stuart A. Raphael

HUNTON & WILLIAMS

3050 Chain Bridge Road

P.O. Box 1147

Fairfax, Virginia 22030

(703) 352-2200

Counsel for Petitioner

APPENDIX

APPENDIX A

OPINION OF THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

February 28, 1994

IN THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 93-1334, 93-1382

FAIRFAX COVENANT CHURCH,

Plaintiff-Appellant/Cross-Appellee,

FAIRFAX COUNTY SCHOOL BOARD,

Defendant-Appellee/Cross-Appellant.

On Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, District Judge.

(CA-92-743-A)

Before ERVIN, Chief Judge, and WILKINS and NIEMEYER,

Circuit Judges.

NIEMEYER, Circuit Judge:

This appeal presents the issue of whether Fairfax County School

Board’s Regulation 8420, which establishes rental rates for off-

hour use of the county’s schools, violates the First Amendment of

the United States Constitution by discriminating against churches.

Although the Fairfax County School Board makes the county’s

172 schools generally available to community and cultural organi-

zations for use after school hours, Regulation 8420 singles out

churches for a progressively escalating rental rate to encourage

them to rent elsewhere, out of a concern that any long-term church

use of school property might constitute an establishment of reli-

gion in violation of the First Amendment.

The district court entered summary judgment, holding that

Regulation 8420 violates the First Amendment rights of Fairfax

Covenant Church, which paid the discriminatory rates, by abridg-

ing its freedom of speech and by prohibiting its free exercise of

religion. The court, however, refused to impose its ruling retroac-

tively to enable the Church to collect the “overcharges” already

paid under the discriminatory rate structure. Fairfax Covenant

Church has appealed the district court’s refusal to apply its ruling

retroactively, and the Fairfax County School Board has cross-ap-

pealed the district court’s ruling that its regulation is unconstitu-

tional. For the reasons that follow, we affirm the district court’s

finding that Regulation 8420 violates the Church’s First Amend-

ment rights, but we reverse the ruling which denies the Church the

right to seek reimbursement for overcharges.

The Fairfax County School Board (“the School Board”’) oper-

ates 172 schools in Fairfax County, Virginia, with an annual oper-

ating budget of over $850 million. The School Board has opened

its facilities to a wide array of private, community, religious and

cultural organizations, both commercial and nonprofit, for use af-

ter school hours and during weekends under a rental structure

adopted in Regulation 8420.

Under Regulation 8420, county, city, or town agencies, county

employee and stuent organizations, and the Boy Scouts and Girl

Scouts of America, all “determined to be for the primary benefit of

the school or the community,” pay no rent for using school facili-

ties. Cultural and civic groups, educational groups, and state and

federal governmental groups pay a noncommercial rate designed

to reimburse the county for the actual costs for the use of the

facilities. Private organizations pay a commercial rate which is

five times the noncommercial rate and is intended to approximate

market rental rates. For churches, Regulation 8420 establishes a

special escalating rate which allows the church to pay the noncom-

mercial rate for the first five years but, thereafter, requires the

church to pay a rate which escalates to the commercial rate over

the next four years. The regulation provides specifically:

II. CONDITIONS OF USE

G. Churches

Churches/religious organizations servicing Fairfax

County citizens may be granted use of a school for

as many as five years.... Church/religious groups

may be authorized usage after five years of use at

increasing rental rates until the full commercial

rates become effective in the ninth year of use.

Only one church may have a contract for continu-

ing use of a single school during any school year.

Regulation 8420 establishes priority of uses, assigning highest

priority to school-related programs. It provides, “When space is

available at times that do not interfere with the previously stated

priorities, school facilities may be scheduled for use by others,

such as (cultural, civic, educational, religious and private groups].”

Finally, the Regulation reserves to the School Board the right to

deny or cancel uses. The Regulation provides no limit to the

number of times a user may rent or use the School Board’s facili-

ties, and evidence in the record demonstrates that some organiza-

tions have been meeting regularly in School Board facilities for

over 20 years. Indeed, the Boy Scouts of America have been

meeting in School Board facilities for some 80 years.

The School Board freely acknowledges that it has singled out

churches for the escalating rental rate structure to encourage them

to go elsewhere, out of a concern for violating the Establishment

Clause of the U.S. Constitution. Homer E. Rhoads, the person

responsible for administering the rental of the School Board's fa-

cilities and for “devising the current Regulation 8420,” stated in

his affidavit filed in the district court:

[W]e determined that churches should not be per-

mitted to use the schools indefinitely at a rental

rate that was well below market. We believed that

this would place the school system in the position

of supporting long-term religious activities in the

schools, in violation of the Constitution. To avoid

this problem, we determined to charge an increas-

ing rental rate after the fifth year of use, which

would gradually approach the commercial rental

rate that we charged to private users.

During the year 1991, about 8,500 groups applied for use of

the public school facilities in Fairfax County, and in 1992, 51

churches were utilizing the facilities. Over the ten-year period

prior to this litigation, the number of churches using school facili-

ties in any given year ranged from 38 to 91.

Fairfax Covenant Church (“the Church”), an evangelical Chris-

tian church which was organized in 1980, currently has about 800

members. The Church began renting school facilities on Sunday

mornings, beginning in 1980. Concerned about expending its five

years of “low rent” before it was able to obtain its own facility, the

Church rented space from another church for the two years between

1982 and 1984. Since 1984, it has rented space from the School

Board in three separate schools. Since 1991, it has been renting the

auditorium and several classrooms at West Springfield High School.

For the first five years, the Church paid rent at a level charged other

nonprofit organizations. Then, because of the special rate charged

to churches under Regulation 8420, the Church paid increasingly

higher rent beginning in 1987, so that by 1991, it was paying five

times the rate charged other nonprofit organizations. The aggregate

amount of the increases paid by Fairfax Covenant Church for the

period from 1987 through February 1993 was $287,456. Although

Fairfax Covenant Church has purchased land for its own facility

and raised approximately $2 million of the $3.3 million needed to

build a facility, it contends that the escalating rent has had an

adverse financial effect on it, making it more difficult for the Church

to move from West Springfield High School.

In May 1993, Fairfax Covenant Church filed a complaint under

42 U.S.C. § 1983, alleging that the rental structure of Regulation

8420 violated its First Amendment rights. It requested injunctive

relief and demanded damages, with interest, for the rent charged in

excess of that charged to other nonprofit organizations and churches

which have not rented for more than five years.

Ruling on cross motions for summary judgment, the district

court found that Regulation 8420 violated the Church’s First

Amendment rights. Relying principally on Widmar v. Vincent,

454 U.S. 263 (1981), and Board of Education v. Mergens, 496

U.S. 226 (1990), the court concluded, “[T]his type of content-

based regulation which unduly burdens speakers’ free exercise of

religious beliefs at a public forum, as is the Fairfax County School

Board’s policy, can only be justified by a compelling state inter-

est.” The court rejected the School Board’s argument that its

actions were justified by its concern about violating the Establish-

ment Clause. The district court, however, refused to make its

holding retroactive because to do so would produce “substantial

inequitable results.” The court observed that Fairfax Covenant

Church brought this action only after it had been renting for 11

years, and, since other churches would also be benefited by the

ruling, the School Board would be confronted with a significant

liability. The court said, “[T}he School Board faces liability for its

good faith attempt to avoid an Establishment Clause violation in

the amount of greater than 1.1 million dollars.”

From the district court’s judgment, both parties appealed.

The arguments of the School Board amount to the contention

that the Establishment Clause of the First Amendment justifies the

School Board’s discriminatory treatment of churches in the rental

structure established by Regulation 8420. The School Board ar-

gues that below-market rent charged to the churches and long-term

or permanent use of school facilities by a church would advance or

subsidize “the practice of religion” and therefore violate the Estab-

lishment Clause. They take no issue with the district court’s finding

that the School Board has created a public forum by opening its

facilities and that, therefore, the School Board is required to provide

some access to these facilities. Thus, the School Board contends

that this case may be decided only by resolving an “actual conflict”

between the Establishment Clause and the Free Speech Clause or

the Free Exercise Clause of the First Amendment.

The First Amendment states, to the extent applicable here, that

“Congress shall make no law respecting an establishment of reli-

gion, or prohibiting the free exercise thereof, or abridging the

freedom of speech.” U.S. Const. amend. I.

Applying the First Amendment to circumstances similar to

those before us, the Supreme Court in Widmar v. Vincent, 454 U.S.

263 (1981), struck down a state university regulation which allowed

a broad array of student groups to use university facilities, but

denied religious groups from doing so. The Court held that when a

state university creates a public forum by openly accommodating

diverse student groups, it may deny a religious group access to that

forum only upon a showing of some compelling state interest. Al-

though the Supreme Court recognized that state institutions are not

required by constitutional mandate to create public fora, the Court

held that when they do, they cannot discriminate against or exclude

student groups that wish to engage in religious worship and discus-

sion, absent a justification that serves a compelling state interest

and is narrowly tailored to achieve that interest. Jd. at 269-70. The

state university in Widmar argued that its interest in maintaining the

separation of church and state, deriving from the Establishment

Clause, was a compelling state interest to justify its exclusion of the

church group. Although the Court acknowledged that the university’s

interest in complying with the Establishment Clause “may be char-

acterized as compelling,” id. at 271, it rejected the notion that al-

lowing religious organizations access to an open forum tended to

establish religion. The Court stated, “an open forum in a public

university does not confer any imprimatur of state approval on

religious sects or practices,” particularly when the forum is open to

a “broad class of nonreligious as well as religious speakers.” Jd. at

274. Noting that the Establishment Clause is limited by the Free

Exercise Clause and the Free Speech Clause, the Court concluded,

“(W]e are unable to recognize the state’s interest [in maintaining a

greater separation of church and state] as sufficiently ‘compelling’

to justify content-based discrimination against respondents’ religious

speech.” Jd. at 276. Any advancement of religion was held to be

“incidental” to the secular purpose of securing an open public fo-

rum.

In short, Widmar held that a policy of equal access to a public

forum which allows for religious uses does not conflict with the

Establishment Clause under the test adopted in Lemon v. Kurtzman,

403 U.S. 602 (1971) (A policy may withstand an attack that it

violates the Establishment Clause if (1) it has a secular legislative

purpose; (2) its principal or primary effect is not to advance or

inhibit religion; and (3) it does not foster an excessive govern-

ment entanglement with religion.).* The vitality of Widmar was

reaffirmed recently in Lamb’s Chapel v. Center Moriches Union

Free School Dist., 113 S. Ct. 2141 (1993); cf Board of Education

v. Mergens, 496 U.S. 226, 247-49 (1990) (plurality opinion) (ap-

plying Widmar’s holding and analysis to similar issues under the

Equal Access Act, 20 U.S.C. §§ 4071-4074).

* We are aware of the repeated criticisms of the Lemon test and are mindful

that the test may be clarified in Board of Education v. Grumet, which the Su-

preme Court recently agreed to hear. 62 U.S.L.W. 3375 (1993). In his concur-

ring opinion in Lamb’s Chapel, 113 S. Ct. at 2150, Justice Scalia stated, “Over

the years, however, no fewer than five of the currently sitting Justices have, in

their own opinions, personally driven pencils through the creature’s [Lemon test's]

heart.” Until Lemon is overruled, however, we are obliged to apply it, although

we note that a standard more accommodating to the Free Exercise Clause would

not change our decision here.

We can find no basis to distinguish the circumstances essential

to the Court’s holding in Widmar from those of record here. See

also Lamb’s Chapel, 113 S. Ct. at 2147-48 (holding that access to

public high school facilities available to a restricted scope of pub-

lic groups was still subject to Widmar and could not be restricted

on the basis of the user’s religious perspective). We therefore con-

clude that Regulation 8420 discriminates against religious speech

in violation of the Free Speech Clause.

Regulation 8420 also interferes with or burdens the Church's

right to speak and practice religion protected by the Free Exercise

Clause. See, generally, Michael W. McConnell, Religious Free-

dom at a Crossroads, 59 Chic. L. Rev. 115, 117 (1992) (noting

that Free Exercise Clause is intended to preserve from undue gov-

ernment interference “full and equal” rights of religious believers

“to define their own way of life, so long as they do not interfere

with the rights of others”). Since the School Board is unable to

advance a compelling state interest to justify Regulation 8420's

discrimination against churches, we conclude that, in addition to

violating the Church’s free speech rights, Regulation 8420 also

violates the Church's rights to exercise religion freely. See Church

of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 113 S. Ct. 2217

(1993) (laws which discriminate on the basis of religion are valid

only if narrowly tailored to serve a compelling state interest).

Seeking to distinguish the circumstances that are essential to the

holding of Widmar from the circumstances here, the School Board

argues that the issue here is squarely one of determining whether

below-market rents combined with long-term or permanent use by a

church of public school facilities runs afoul of the Establishment

Clause. It seeks to place this case within the scope of the exception

described in Widmar: “At least in the absence of empirical evi-

dence that religious groups will dominate UMKC’s open forum,

we agree with the Court of Appeals that the advancement of religion

would not be the forum’s ‘primary effect.’ “ 454 U.S. at 275 (em-

phasis added). The School Board’s position is that long-term or

permanent use of School Board facilities would constitute such

domination. The empirical evidence of domination referred to in

Widmar, however, is not fulfilled by the School Board’s anxiety or

concern about whether the empirical circumstances could exist in

the future. Mere speculation that a nonexclusive access to a public

forum might ripen into a violation of the Establishment Clause,

absent any facts suggesting that probability, is not a justification

sufficiently compelling to burden free access to the forum. Rather

than having the effect of remedying the concern about the Establish-

ment Clause, the School Board’s policy of rent discrimination against

religious organizations moves the School Board into a non-neutral,

antireligion corner by burdening free speech and the free exercise of

religion.

The School Board’s concern about the establishment of religion

is not only unfounded but is also reflective of a one-sided view of

the First Amendment. The School Board created a public forum to

which it provides access to all sorts of uses, including religious

uses. In a given year, it receives approximately 8,500 applications

for use of its 172 schools, about 50 of which are from churches.

None of the users receives a lease for more than a year, and the

Board has reserved the right to deny or terminate any use when to

do so is “in the best interest of the school system.” No evidence

was presented that Fairfax Covenant Church dominated the School

Board's rental capacity. Nor is there evidence that the Board had to

deny anyone else access to the forum by reason of Fairfax Covenant

Church’s lease. Moreover, no one has even hinted that the current

policy of providing religious groups access to public school facili-

ties after hours shows a School Board preference for religion or for

a particular sect of religion.

The School Board’s expressed concern about subsidizing reli-

gious practice is likewise unfounded. It contends that its below-

market rental rate to churches amounts to direct financial subsidy

and therefore establishes a religion in violation of the Establishment

Clause, relying on School District of Grand Rapids v. Ball, 473

U.S. 373, 385 (1985) (holding that the Establishment Clause abso-

lutely prohibits government-financed or government-sponsored “in-

doctrination into the religious beliefs of a particular religious faith”),

amd Tilton v. Richardson, 403 U.S. 672 (1971) (holding as an

improper subsidy the use of public funds to help construct buildings

for religious colleges, where the government prohibits religious use

of those buildings for only 20 years). These cases, however, do not

control the circumstances here. Regulation 8420 charges churches

that use the school for less than five years the same rate as it

charges other nonprofit cultural and civic groups. This rent is

designed to reimburse the School Board for any expense incurred

by the use of the school. Rather than subsidizing a church user,

such a cost-recovering rent in fact provides money to the School

Board to offset its ongoing expenses for school facilities. This is

particularly so since there is no evidence to suggest that the School

Board’s facilities are used to capacity and that the loss of a church

user would be replaced by a private group paying market rental. In

short, the argument that a direct subsidy is involved here lacks

factual support.

Moreover, the Supreme Court in Widmar rejected these very

arguments in circumstances completely analogous to those presently

under consideration. In holding that the costs of maintaining a

public forum do not advance the views and beliefs of those using

the forum, the Supreme Court rejected the applicability of Tilton to

these circumstances. It said:

In Tilton the Court was concerned that a sectarian

institution might convert federally funded buildings

to religious uses or otherwise stamp them with the

imprimatur of religion. But nothing in Tilton sug-

gested a limitation on the State’s capacity to main-

tain forums equally open to religious and other dis-

cussions. Cases before and after Tilton have

acknowledged the right of religious speakers to

use public forums on equal terms with others.

454 US. at 273 n.12.

The question of how sustaiied a religious use of a public forum

or preoccupying that use must be in order to constitute a domination

of the forum is a factual one. The record in this case contains no

10a

evidence to suggest that the School Board’s maintenance of a public

forum, to which a wide array of nonreligious and religious speakers

are permitted to come, is interpreted by the community to constitute

a religious endorsement by the School Board. See Lamb’s Chapel,

113 S. Ct. at 2148. Moreover, the School Board must remain

mindful of its obligation, when providing a public forum, of pre-

serving the public’s rights under the Free Exercise Clause. Accord-

ingly, we affirm the district court’s ruling that Regulation 8420,

which adopted a rate structure that discriminates against religious

uses of the School Board’s public forum, violates the Free Speech

and Free Exercise Clauses of the First Amendment.

iil

In its appeal, Fairfax Covenant Church contends that the dis-

trict court erred in concluding that “the retroactive application of its

decision is not warranted.” Relying on American Trucking Asso-

ciations v. Smith, 496 U.S. 167 (1990) (plurality opinion), and

Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), the district court

concluded that because the School Board acted in good faith and

the Church waited 11 years to file, it would be inequitable to assess

damages, particularly since this case may generate further suits. It

estimated that the School Board’s total exposure would exceed $1.1

million. Taking these findings together with the observation that an

award of damages would not further “the principle of treating simi-

larly those religious and non-religious groups using an open public

forum,” the district court concluded that “retroactive application of

its decision is not warranted.”

Before reviewing the district court’s application of the Chevron

criteria to this case, a review of the principles governing retroactivity

of judicial decisions is useful. It is axiomatic in our system that

courts, when announcing their decisions, decide actual cases and

controversies, see U.S. Const., art. III, § 2, and that courts are not

charged with responsibility for making new, prospective rules for

society. That function is typically legislative. When a legislature

enacts rules for prospective application to society, it cannot practi-

cably anticipate all the circumstances to which its enactments might

lla

apply, or how they might apply. Its enactments are, of necessity,

general. Courts, presented with actual cases and controversies,

must particularize their rulings, and in that context they may an-

nounce results or interpretations not previously obvious or which

change earlier interpretations. To that extent, these court decisions

might be thought to contribute “new law.” But even then, the

decisions almost always apply retroactively because they apply and

interpret rules and principles that governed the conduct of the par-

ties at the time that the controversy arose. Retroactive application

of decisions is thus the rule inherent in the judicial function.

Beginning with Linkletter v. Walker, 381 U.S. 618 (1965) (in

the context of a criminal case), and Chevron Oil (in the context of

a civil case), the Supreme Court began with greater frequency to

apply decisions prospectively where circumstances indicated an

unusually disruptive or inequitable result if a decision announcing

a “new law” were to be applied retroactively. Sometimes, the

prospective application was limited to the case before the Court,

so-called “selective prospectivity,” and in other cases the prospec-

tive application applied to all cases then pending, so-called “pure

prospectivity.” In Chevron, the Court announced a test for deter-

mining when court decisions may be applied prospectively:

First, the decision to be applied nonretroactively

must establish a new principle of law, either by

overruling clear past precedent on which litigants

may have relied, or by deciding an issue of first

impression whose resolution was not clearly fore-

shadowed. Second, it has been stressed that “we

must ... weigh the merits and demerits in each case

by looking to the prior history of the rule in ques-

tion, its purpose and effect, and whether retrospec-

tive operation will further or retard its operation.”

Finally, we have weighed the inequity imposed by

retroactive application, for “where a decision of

this Court could produce substantial inequitable re-

sults if applied retroactively, there is ample basis in

our cases for avoiding the ‘injustice or hardship’ by

a holding of nonretroactivity.”

12a

404 U.S. at 106 (internal citations omitted).

Only recently has the Supreme Court cast serious doubt upon

the practice of departing from the traditional rule of retroactive

applications. See Harper v. Virginia Dept. of Taxation, 113 S. Ct.

2510, 2517 (1993) (“When this Court applies a rule of federal law

to the parties before it, that rule is the controlling interpretation of

federal law and must be given full retroactive effect in all cases....”’);

James B. Beam Distilling Co. v. Georgia, 111 S. Ct. 2439 (1991)

(opinions of Justices Souter, White, Scalia and Blackmun, repre-

senting the views of six justices). Though the precise issue in

Harper was so-called “selective prospectivity,” every indication in

the opinion of the Court is that its logic would also forbid all types

of prospectivity. See Harper, 113 S. Ct. at 2517 (“Our approach

to retroactivity heeds the admonition that ‘the Court has no more

constitutional authority in civil cases than in criminal cases to disre-

gard current law ....’”); id. at 2527 (O’Connor, J., dissenting)

(“Rather than limiting its pronouncements to the question of selec-

tive prospectivity, the Court intimates that pure prospectivity may

be prohibited as well.”). It might not be reading too much into

Harper and James B. Beam if we were to conclude that Chevron,

adopting the test for determining when cases may be enforced pro-

spectively, has lost all vitality. We are struck, however, by the

notable absence in Harper of any statement that Chevron is over-

ruled for use in civil cases involving a question of “pure” prospectivity

or that all prospective decisionmaking is prohibited. Nevertheless,

even if Chevron criteria are applied to the circumstances of this

case, we conclude it was error for the district court to have refused

to apply its decision retroactively.

In the case before us, the first two factors of Chevron need not

be analyzed further, since they have already been disposed of by our

analysis on the merits. As we noted, we are satisfied, as was the

district court, that the holding in Widmar, a 1981 decision,

unremarkably controls the decision here and that the district court

did not establish a new principle. It is the third factor of Chevron,

which takes into account inequities of applying the normal rule of

retroactivity, that the district court relied on to apply its ruling

13a

prospectively. In support of its ruling, the court noted that the

defendant acted in good faith, that the plaintiff waited 11 years to

file its suit, and that the amount of damages is substantial. While

the district court was properly concerned with the public welfare, it

failed to appreciate that its decision was readily foreseeable in light

of Widmar, and that defenses available to the School Board in the

litigation will help substantially to ameliorate its financial exposure.

The good faith of a defendant, relied on by the district court,

may be relevant when the elements of a cause of action, or where a

defense to it, depend on the defendant's state of mind. Moreover,

bad faith may be relevant to preclude any equitable application of

the law. But in the circumstances here, whether the defendant acted

in good faith is irrelevant and barely contributes to any possibility

of an inequity. If the School Board was wrong, even innocently, it

should not be allowed to retain illegally collected rent.

With respect to the $1.1 million damages exposure, we are

also not impressed. In this case, the claim is for slightly more than

$280,000, plus interest. That amount, moreover, is subject to any

defenses pleaded by the School Board, such as laches and limita-

tions. Against an annual operating budget of $850 million, we

cannot say that the potential award in this case is so substantial as

to fall under the inequitable-result exception in Chevron. As for

other claimants who might benefit from this decision, their claims,

if they can be established, would also be subject to limiting de-

fenses. To speculate here on the possible awards that might be

entered would be of no benefit to the discussion.

Finally, any inequity arising from the fact that Fairfax Cov-

enant Church waited 11 years to file suit will be directly offset by

the application of the doctrine of laches and limitations when this

case is remanded.

For the reasons given, we affirm the district court’s ruling which

found Regulation 8420 unconstitutional, but conclude that the dis-

trict court erred in failing to follow the normal rule that its decision

l4a

apply retroactively. Accordingly, we vacate the judgment and remand

this case for further proceedings not inconsistent with this opinion.

AFFIRMED IN PART, REVERSED

IN PART, AND REMANDED.

ORDER

March 17, 1994

The Court amends its opinion filed February 28, 1994, as fol-

lows:

On page 5, first full paragraph, line 1 - the paragraph is cor-

rected to begin “In May 1992, Fairfax Covenant Church filed a

complaint... .”

For the Court — By Direction

/s/ Bert M. Montague

Clerk

15a

APPENDIX B

ORDER OF THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT

DENYING PETITION FOR REHEARING AND

SUGGESTION FOR REHEARING IN BANC

March 31, 1994

IN THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 93-1334, 93-1382

FAIRFAX COVENANT CHURCH,

Plaintiff-Appellant/Cross-Appellee,

FAIRFAX COUNTY SCHOOL BOARD,

Defendant-Appellee/Cross-Appellant.

NATIONAL SCHOOL BOARDS ASSOCIATION,

Amicus Curiae.

On Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, District Judge.

(CA-92-743-A)

16a

Appellee’s petition for rehearing and suggestion for rehearing in

banc were submitted to this Court. As no member of this Court or

the panel requested a poll on the suggestion for rehearing in banc,

and

As the panel considered the petition for rehearing and is of the

opinion that it should be denied,

IT IS ORDERED that the petition for rehearing and suggestion

for rehearing in banc are denied.

IT IS FURTHER ORDERED that the motion of the National

School Boards Association to file amicus curiae brief is granted.

Entered at the direction of Judge Niemeyer from a penal con-

sisting of Judge Niemeyer, Chief Judge Ervin and Judge Wilkins.

For the Court,

/s/ Bert M. Montague

Clerk

17a

APPENDIX C

ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

STAYING ISSUANCE OF THE MANDATE

April 8, 1994

IN THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 93-1334, 93-1382

FAIRFAX COVENANT CHURCH,

Piaintiff-Appellant/Cross-Appellee,

FAIRFAX COUNTY SCHOOL BOARD,

Defendant-Appellee/Cross-Appellant.

NATIONAL SCHOOL BOARDS ASSOCIATION,

Amicus Curiae.

On Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, District Judge.

(CA-92-743-A)

18a

Appellant has filed a motion to stay the mandate.

The Court grants the motion and stays issuance of the mandate

for thirty days pursuant to Federal Rule of Appellate Procedure

41(b).

Entered at the direction of Niemeyer, with the concurrence of

Chief Judge Ervin and Judge Wilkins.

For the Court,

/s/ Bert M. Montague

Clerk

19a

APPENDIX D

MEMORANDUM OPINION OF THE U.S. DISTRICT

COURT FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

January 22, 1993

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

FAIRFAX COVENANT CHURCH,

Plaintiff,

v. CIVIL ACTION No.

92-743-A

FAIRFAX COUNTY SCHOOL BOARD,

Defendant.

HILTON, District Judge.

This matter came before the Court on cross motions for sum-

mary judgment on the Plaintiff Fairfax Covenant Church’s request

for a permanent injunction, declaratory judgment, and for compen-

satory damages of not less than $235,000 plus interest to reimburse

plaintiff for extra rent the church has paid under the policy chal-

lenged in this case. A motion for summary judgment is proper if the

pleadings, depositions, answers to interrogatories and admissions on

file, and affidavits, if any, “show that there is no genuine issue as to

any material fact” in dispute. Celotex Corp. v. Catrett, 477 U.S.

317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d

20a

202, 106 S. Ct. 2505 (1986)). The parties to this action agree that

there are no genuine issues of material fact and that this matter is

ripe for determination by this court.

Fairfax Covenant Church is an evangelical Christian church

that was established in 1980. The congregation gathers for wor-

ship, fellowship and Biblical teaching every Sunday. The Church is

currently in its eleventh year of renting Fairfax County School

Board's facilities for its meetings. The Church currently rents the

auditorium, gymnasium, and some classrooms at West Springfield

High School for its weekly Sunday morning service. During the

first five years of renting the facilities, it paid the same rate as other

no-profit groups. During year six, it paid double the rental rate,

during year seven it paid triple, and during year eight it paid four

times the rental rate. Since year nine, the Church pays the School

Board the “commercial rental rate,” which is five times the regular

rate, for the use of these facilities. The current rental contract

expires in April 1993. The Church alleges that it is currently in its

sixth year of being overcharged for rent by the School Board. Over

this period of time, the Church has paid approximately $235,000

more in rent than it would have if its meetings did not have religious

content.

Defendant Fairfax County School Board allows an array of

community groups to rent its facilities during weeknights and week-

ends. An estimated 9000 groups and individuals met at the ap-

proximately 180 school district facilities available for rent during

the 1991-92 school year. The School Board’s policy is governed by

Regulation 8420. Regulation 8420 allows a broad range of com-

munity groups to meet in the schools, including youth groups, Fairfax

County employee organizations, cultural and civic groups, colleges

and universities, state and federal government agencies, private or-

ganizations and individuals, and churches. Virtually any group is

allowed to rent the Fairfax County School Board's facilities.

Nevertheless, Regulation 8420 treats churches and other reli-

gious groups differently than all other organizations. The regula-

tion states that “church/religious groups may be authorized usage

Cee

after five years of use at increasing rental rates until the full com-

mercial rates become effective in the ninth year of use.” Thus, for

the first five rental years, churches may rent school facilities at the

same rate as all other groups. After five years, only churches pay

the increasingly higher rates. In addition, the “Standard Operating

Procedure for Community Use of School Facilities — Church/Reli-

gious Organizations” requires churches to provide “satisfactory evi-

dence of progress towards the construction or acquisition of a church

site is presented to the coordinator.” No other rental group is

required to make such a showing. Regulation 8420 further provides

a chart which states that organizations pay “no fee” for use of the

buildings if the “school or the community is the primary benefi-

ciary.” This “no fee” provision does not apply to “religious ser-

vices or religious instructions.”

The Fairfax County School Board maintains this policy be-

cause it believes the Establishment Clause of the First Amendment

mandates that it charge religious groups more rent than other groups

on a long-term basis. The School Board argues that to allow

church groups to use school facilities on a long-term basis, at a low

rental rate, would constitute the establishment of religion. See Har-

ris v. McRae, 448 U.S. 297, 319, 65 L. Ed. 2d 784, 100 S. Ct.

2671 (1980); Lemon v. Kurtzman, 403 U.S. 602, 612-13, 29 L. Ed.

2d 745, 91 S. Ct. 2105 (1971) (The Establishment Clause prohibits

Congress and the states via the Fourteenth Amendment from pass-

ing any law “respecting an establishment of religion.” Government

action does not violate the Establishment clause if the action has:

(1) a secular legislative purpose; (2) if its principle effect neither

advances nor inhibits religion; and (3) if the action does not foster

excessive government entanglement with religion.).

By relying primarily on Establishment Clause analysis, the

School Board ignores the open forum doctrine rationale, which is

applicable to the set of facts presently before this Court. The

School Board, by its policy of renting school facilities to a broad

range of community groups has created an open, or public forum.

A government facility becomes an open forum when the government

allows it to be “generally open to the public” for a broad range of

22a

expressive activities. Perry Educ. Ass'n v. Perry Local Educators’

Ass'n, 460 U.S. 37, 45, 74 L. Ed. 2d 794, 103 S. Ct. 948 (1983).

In Widmar v. Vincent, 454 U.S. 263, 70 L. Ed. 2d 440, 102 S.

Ct. 269 (1981), which is the modern landmark case dealing with

religious groups’ access to public education facilities, the Supreme

Court ruled that religious speech cannot be barred from a limited

public forum simply because it is religious speech. In that case the

University of Missouri-Kansas City allowed student groups to meet

in campus facilities, but excluded a student evangelical Christian

Group from meeting on campus solely because it was a religious

organization. The Court held that the university discriminated against

the student group and individuals based on “their desire to use the

open forum to engage in religious worship and discussion. These

are forms of speech protected by the First Amendment.” 454 U.S.

at 269.

Further, the Court noted that “an open forum . . . does not

confer any imprimatur of state approval on religious sects and prac-

tices.” 454 U.S. at 274; see also Westside Community Schools v.

Mergens, 496 U.S. 226, 110 L. Ed. 2d 191, 110 S. Ct. 2356 (1990)

(principles of Widmar extended to speech in forums at the second-

ary school level). In fact, by creating a forum generally open for

use by various groups, the Fairfax County School Board does not

thereby endorse or promote any of the particular ideas aired there.

Undoubtedly, many of the views that are advocated are those with

which the School Board desires no association. See Widmar, 454

U.S. at 271 n.10.

In addition, school facilities may be deemed public forums if

school authorities make open by either “policy or practice” those

facilities for “indiscriminate use by the general public.” Perry, 460

U.S. at 45-46. In the present case Fairfax County School Board

has created an open forum for expression through both policy and

practice, and thus this forum for expression is protected by the Free

Speech Clause of the First Amendment. The Fairfax County School

Board policy envisions use of facilities for a broad array of expres-

sive activities. It explicitly states that it allows youth groups, Fairfax

County employee organizations, cultural and civic groups, colleges

and universities, churches, state and federal government agencies,

and private organizations and individuals to meet in the facilities

Clearly it is the policy of Fairfax County School Board to allow

virtually anyone to rent its facilities.

Other courts have found similar policies to create open forums.

See Gregoire v. Centennial School Dist., 907 F.2d 1366 (3d Cir.

1990) (school district had an open forum policy when it permitted

meetings by civic groups, cultural activities, resident service organi-

zations, adult education classes and labor union meetings); Con-

cerned Women for America v. Lafayette C ‘ounty and Oxford, Mis-

sissippi Public Library, 883 F.2d 32, 34 (5th Cir. 1989) (public

library's express exclusion of religious groups from meeting in its

auditonum was unconstitutional because the library was an open

forum — it had a policy of allowing any and all other meetings of a

“civic, cultural or educational character” to use the facility). Cases

have further acknowledged the right of religious speakers to use

such forums on equal terms with others. See Widmar, 454 U.S. at

272 n.12; Heffron v. International Society for Krishna Conscious-

ness, Inc., 452 U.S. 640, 69 L. Ed. 2d 298, 101 S. Ct. 2559 (1981);

Saia v. New York, 334 U.S. 558, 92 L. Ed. 1574, 68 S. Ct. 1148

(1948).

Fairfax County School Board creates an open forum by prac-

tice as well since, for example, during the 1991-92 school year, the

School Board has allowed approximately 9000 groups to meet in

the 180 school facilities available for such use. Because it is clear

that the Fairfax County School Board has created an open forum

for expression, First Covenant Church [sic] cannot be treated differ-

ently from other groups that use the forum simply because of the

content of its speech. See Widmar v. Vincent, 454 U.S. 263, 70 L.

Ed. 2d 440, 102 S. Ct. 269.

To focus only on religious groups who use the School Board’s

open forum also directly contradicts the recent Supreme Court deci-

sion of Employment Division v. Smith, 494 U.S. 872, 108 L. Ed. 2d

876, 110 S. Ct. 1595 (1990) and thus also violates the Free Exer-

cise Clause. In Smith, the Supreme Court found that “the govern-

ment may not. . . impose special disabilities on the basis of

religious views or religious status.” 494 U.S. at 877. Further, courts

are to “strictly scrutinize governmental classifications based on reli

gion.” 494 U.S. at 886 n.3.

Even the Attorney General admits that, owing to the Pree Exer-

cise Clause of the First Amendment, the School Board “obviously

could not exclude churches and other facilities as long as it allowed

other groups the same privilege.” Va. Op. Ag. 54-173, at 3 (Au-

gust 10, 1990); see id. at 877. In Widmar, the Court found that

[iJn order to justify discriminatory exclusion from a

public forum based on the religious content of a

group's intended speech, the [state] must therefore

satisfy the standard of review appropriate to con-

tent-based exclusions. It must show that its regula-

tion is necessary to serve a compelling state interest

and that it is narrowly drawn to achieve that end

Widmar, 454 U.S. at 269-70.

Thus, this type of content-based regulation which unduly bur

dens speakers’ free exercise of religious beliefs at a public forum,

as is the Fairfax County School Board’s policy, can only be justi-

fied by a compelling state interest. Perry, 460 U.S. at 45, Widmar

454 U.S. at 270; Cornelius v. NAACP Legal Defense and Educ.

Fund, 473 U.S. 788, 800, 87 L. Ed. 2d 567, 105 S. Ct. 3439

(1985); Carey v. Brown, 447 U.S. 455, 461, 65 L. Ed. 2d 263, 100

S. Ct. 2286 (1980). The Fairfax County Schooi Board, and the

Attorney General of Virginia, argue to no avail that the “tension”

between the Establishment Clause and the Free Exercise Clause

provides this compelling interest.

Since the School Board’s policy singles out only churches for

increased rental payments, this policy violates the Free Speech Clause

because such a fee structure is content-based. In Simon & Schuster

v. New York Crime Victims Bd., 116 L. Ed. 2d 476, 112 S. Ct. 50!

ee,

(1991), the Supreme Court found that a “statute is presumptively

inconsistent with the First Amendment if it imposes a financial

burden on speakers because of the content of their speech.” /d. at

508. By charging religious groups alone the escalating rental fee

scale and having no compelling interest (as discussed below) to

rationalize the higher rate, the School Board violates a fundamental

premise of the Free Speech Clause.

The Supreme Court has denounced content-based financial bur-

dens on expressive activities in other cases which are applicable to

the present matter. In Arkansas Writers’ Project, Inc. v. Ragland,

481 U.S. 221, 95 L. Ed. 2d 209, 107 S. Ct. 1722 (1987), the

Supreme Court struck down a state sales tax scheme that taxed

magazines, but exempted newspapers and religious, professional

trade and sports journals, as well as those journals published within

the state. The Supreme Court found this tax scheme unconstitu-

tional since the statute was content-based. In Police Dept. of Chi-

cago v. Mosley, 408 U.S. 92, 95, 33 L. Ed. 2d 212, 92 S. Ct. 2286

(1972), the Court found that “above all else, the First Amendment

means that government has no power to restrict expression because

of its message, its ideas, its subject matter, or its content.” Like-

wise, charging the escalating rental fee to First Covenant Church

[sic] simply because of its religious message is in violation of the

First Amendment.

The Supreme Court has rejected application of the Establish-

ment Clause as a compelling justification for discrimination against

the religious content of speech in the landmark cases of Mergens,

110 S. Ct. at 2370-73, and Widmar, 454 U.S. at 271. First, the

Supreme Court in both Widmar and Mergens held that a neutral

policy allowing both religious and non-religious speakers equal ac-

cess to an open forum embodies a permissible secular purpose and

that such a neutral policy “would in fact avoid entanglement with

religion.” Mergens, 110 S. Ct. at 2370 (quoting Widmar, 454 U.S.

at 271-72).

Second, the Supreme Court has also ruled that it does not vio-

late the Establishment Clause for religious groups to partake of

neal

governmental financial benefits that are available to everyone. See

Mueller v. Allen, 463 U.S. 388, 77 L. Ed. 2d 721, 103 S. Ct. 3062

(1983) (upheld a Minnesota tax deduction for student expenses at

all schools, including parochial schools); Witters v. Washington

Dept. of Servs. for the Blind, 474 U.S. 481, 88 L. Ed. 2d 846, 106

S. Ct. 748 (1986) (rejected a claim by the state of Washington that

it was required to ban a blind person from a state program funding

the college educations of blind people, because he wanted to go to a

Bible college); Bowen v. Kendrick, 487 U.S. 589, 101 L. Ed. 2d

520, 108 S. Ct. 2562 (1988) (upheld federal program to teach

sexual chastity to teenagers that funded many secular as well as

religious groups to promote that goal); Walz v. Tax Comm’n, 397

U.S. 664, 25 L. Ed. 2d 697, 90 S. Ct. 1409 (1970). These decisions

factually match the situation in the present case because they in-

volve government programs that provided financial benefits to ev-

eryone, including religious groups or individuals. In the present

case Fairfax County School Board permits generally all groups to

meet in its schools for years at a time, which is a permissible

secular purpose for the policy.

Treating churches the same as everyone else, which Fairfax

County School Board easily could do, cannot be viewed as treating

churches better than everyone else. “[RJeligious institutions need

not be quarantined from public benefits that are neutrally available

to all.” Roemer v. Maryland Pub. Works Bd., 426 U.S. 736, 746,

49 L. Ed. 2d 179, 96 S. Ct. 2337 (1976). Thus, the Supreme Court

has previously questioned the School Board’s theory because it

would mean that a “church could not be protected by the police and

fire departments, or have its sidewalks kept in repair. The Court

never has held that religious activities must be discriminated against

in this way. Neutrality is what is required.” IJd., 426 U.S. at 747.

Not only does the School Board’s policy fail under the open

forum doctrine, but the policy also fails under Establishment Clause

analysis, as examined pursuant to Lemon v. Kurtzman. If anything,

the School Board’s policy violates the second prong of the Lemon

test, since the policy and actions of the School Board have the

“primary effect” of advancing non-religion and inhibiting religion.

The Establishment Clause requires neutrality towards religion. “In-

deed the message is neutrality rather than endorsement; if a state

refuses to let religious groups use facilities open to others, then it

would demonstrate not neutrality but hostility toward religion.” 110

S. Ct. at 2371. Since the School Board charges religious users more

than all other users, the School Board’s policy arguably violates

this prong of the Establishment Clause.

Allowing religious groups to meet in an open forum like any

other group, and pay the same rent as other groups, does not have

the “primary effect” of advancing religion. It both allows and

promotes and the free exchange of ideas and speech. See Widmar,

454 U.S. at 273-74. Obviously, Fairfax Covenant Church enjoys

some secondary benefit of having its views publicly expressed at

West Springfied High School, but the Supreme Court in Widmar

explained that “a religious organization's enjoyment of merely ‘inci-

dental’ benefits does not violate the prohibition against the ‘primary

advancement’ of religion.” Id. at 274: see also Walz v. Tax Comm'n,

397 U.S. 664, 25 L. Ed. 2d 697, 90 S. Ct. 1409 ; McGowan y.

Maryland, 366 U.S. 420, 6 L. Ed. 2d 393, 81 S.Ct. ] 101 (1961).

Further, allowing religions groups to meet in an open forum

does not violate the third prong of the Lemon test, since it does not

“excessively entangle” church with state. 454 U.S. at 272. In fact,

the Court in Widmar found that one could risk greater entangle-

ment by attempting to enforce its exclusion of religious worship and

religious speech, in the form of invasive monitoring to prevent reli-

gious speech at meetings where such speech could occur. /d. at 272

n.11. More generally, “it is common ground that nothing in the

Establishment Clause requires the State to suppress a person’s speech

merely because the content of the speech in religious in character.”

Bender v. Williamsport Area School Dist, 475 U.S. 534, 552, 89

L. Ed. 2d 501, 106 S. Ct. 1326 (1986) (Burger, C.J., dissenting).

Finally, the First Amendment ultimately requires “the state to

be neutral in its relations with groups of religious believers and non-

believers; it does not require the state to be their adversary. State

power is no more to be used so as to handicap religions than it is to

favor them.” Everson v. Board of Educ., 330 U.S. 1, 18, 91 L.Ed.

28a

711, 67 S. Ct. 504 (1947). As the Supreme Court stated in Widmar,

“where the state has opened a forum for direct citizen involvement,

exclusions bear a heavy burden of justification.” 454 U.S. at 268.

The Fairfax County School Board’s reliance on the Establishment

Clause clearly does not justify their discriminatory policy towards

First Covenant Church [sic].

This court accordingly finds that the Fairfax County School

Board's policy, Regulation 8420, is violative of the First Amend-

ment, in designating all religious groups for the School Board facili-

ties at a rental rate higher than the rate charged to non-religious

community groups. Therefore, the Fairfax County School Board is

enjoined from enforcing Regulation 8420, or any other policy which

would charge religious organizations rental rates which are dispar-

ate from those charged to non-religious community groups.

Lastly, plaintiff, First Covenant Church [sic], requests damages

in the amount of $235,000.00 plus interest to reimburse plaintiff for

the extra rent the church has paid pursuant to the School Board’s

Regulation 8420. While this request was in the Complaint, the

issue has not been further addressed in the submissions of the par-

ties. The plaintiff should file within ten (10) days any request for

damages, with supporting memorandum, and the Defendant shall

respond within ten (10) days, as to whether any amount of damages

is warranted.

An appropriate Order shall issue.

/s/ Claude M. Hilton

UNITED STATES DISTRICT JUDGE

Alexandria, Virginia

January 22, 1993

ORDER

This matter came before the Court on Cross Motions for Sum

mary Judgment upon Plaintiff Fairfax Covenant Church's request

for a permanent injunction, declaratory judgment and damages. For

reasons stated in the accompanying memorandum opinion, it is hereby

ORDERED that plaintiff's motion for summary judgment is

GRANTED. It is further ORDERED, ADJUDGED, AND

DECREED that Fairfax County School Board Regulation 8420 is

unconstitutional, and defendant Fairfax County School Board is

hereby ENJOINED from charging religious groups a disparate rental

rate pursuant to Regulation 8420 or to any subsequent policies

Counsel for plaintiff shall file within ten (10) days any request for

damages with supporting memorandum, and the defendant shall

respond within ten (10) days as to whether any amount of damages

is warranted

/s/ Claude M. Hilton

UNITED STATES DISTRICT JUDGE

Alexandria, Virginia

January 22, 1993

APPENDIX E

MEMORANDUM OPINION OF THE U.S. DISTRICT

COURT FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

March 11, 1993

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

FAIRFAX COVENANT CHURCH,

Plaintiff,

Vv CIVIL ACTION No

92-743-A

FAIRFAX COUNTY SCHOOL BOARD,

Defendant.

HILTON, District Judge.

This matter came before the court on Defendant's Motion for

Prospective Relief Only, and on Plaintiff's Motion for Compensa-

tory Damages. On January 22, 1993 this court determined that the

Fairfax County School Board’s rental policy, Regulation 8420, was

unconstitutional. Plaintiff, First Covenant Church [sic], who has

rented public school facilities for the past 11 years, requests dam-

ages in the amount of $287,455.60, plus interest in the amount of

$62,234.50, to reimburse plaintiff for the extra rent the church has

paid over the years pursuant to the School Board’s Regulation

8420.

sla

In Chevron Oil v. Huson, 404 U.S. 97 (1971), the Supreme

Court set out several factors to use as a guide for determining

whether a decision should be denied retroactive application:

First, the decision to be applied nonretroactively

must establish a new principle of law, either by

overruling clear past precedent on which litigants

may have relied, or by deciding an issue of first

impression whose resolution was not clearly fore-

shadowed. Second . . . whether retrospective op-

eration will further or retard its operation. Finally,

. weigh[ ] the inequity imposed by retroactive

application.

404 U.S. at 106-07 (citations omitted). Because the factors are

interrelated, each factor need not be “fully satisfied” to preclude

retroactivity. Grimes v. Owens-Corning Fiberglass Corp., 843

F.2d 815, 819 (4th Cir.), cert. denied, 488 U.S. 889 (1988). This

court also recognizes that the process of “reconciling the constitu-

tional interests reflected in a new rule of law with reliance interests

founded upon the old is ‘among the most difficult of those which

have engaged the attention of courts, state and federal.’” Lemon v.

Kurtzman, 411 U.S. 192, 198 (1973) (Lemon IT) (plurality opinion)

(quoting Chicot County Drainage Dist. v. Baxter State Bank, 308

U.S. 371, 374 (1940)). Based on consideration of the factors enun-

ciated in Chevron, this court finds that relief based on its decision

of January 22, 1993 must be applied prospectively only.

First, this court was guided by the principles of Widmar v.

Vincent, 454 U.S. 263 (1981), and Board of Educ. v. Mergens, 496

U.S. 226 (1990), in deciding the novel and complicated issues pre-

sented in this case. Even though the decision was within the “logi-

cal compass” of those Supreme Court decisions, that fact alone is

not conclusive in deciding whether the current decision is a new rule

of law. Butler v. McKellar, 494 U.S. 407, 415 (1990). As the

Supreme Court acknowledged in Lemon v. Kurtzman, 403 U.S. 602

(1971) (quoted in Lemon II, 411 U.S. at 206), the “lines of demar-

cation” in this sensitive area of constitutional law are also “dimly

perceived.”

32a

The Virginia Attorney General’s opinion, Va. Op. Ag. 54-173

(August 10, 1990), which upheld the constitutionality of Regulation

8420, and the various state courts who determined similar issues in

a matter differently than this court, make it a reasonable assumption

that this court’s decision was not “clearly foreshadowed” by earlier

authority. See, e.g., Pratt v. Arizona Bd. of Regents, 110 Ariz.

466, 520 P.2d 514 (1974); O’Hara v. School Bd., 432 So. 2d 1356

(Fla. Dist. Ct. App. 1983); Resnick v. East Brunswick Township

Bd. of Educ., 77 N.J. 88, 389 A.2d 944 (1978). Given also that

authority directly on point was lacking, this was an issue of first

impression. Thus, the first Chevron factor inclines towards non-

retroactivity.

Second, retroactive application of this Court’s decision will not

further the principle advanced in this case regarding the treatment

of religious groups equally with other non-religious groups that

have rented school board facilities for longer than five years. In

American Trucking Ass'n v. Smith, 496 U.S. 167 (1990) (plurality

opinion), the Supreme Court declined to impose retroactively a de-

cision regarding a violation of the “negative” Commerce Clause

after balancing state options to remedy the violation. Such options

included retroactive payments to those who had paid more pursuant

to the unconstitutional regulation or a retroactive increase in taxes

to those who had paid less. The Court noted that the first option

would impinge on the state’s treasury, while the state’s second

option would be administratively burdensome, could create other

constitutional problems, and could unfairly penalize other taxpay-

ers. Jd. at 179-80. Neither option would further the principles

advanced in the case, and would produce substantial inequitable

results.

This court faces a dilemma somewhat comparable to that of

American Trucking, and thus finds that Chevron’s second and third

factors balance in favor of non-retroactivity, since, weighing all

factors, retroactive application of the court’s decision will not ad-

vance the principle of treating similarly those religious and non-

religious groups using an open public forum. Further, the retroac-

tive application of this court’s decision would produce substantial

33a

inequitable results. The School Board acted in a good faith attempt

to avoid a collision with the Establishment Clause when it created

Regulation 8420. In spite of its good intentions, the School Board

ran afoul of other sections of the Constitution, namely the Free

Speech Clause. Fairfax Covenant brought this action only after it

had already been renting from the School Board for 11 years, pur-

suant to the escalating rental structure that had been in effect since

1982. In addition, under the rent reimbursement scheme suggested

by the plaintiff, the School Board faces liability for its good faith

attempt to avoid an Establishment Clause violation in the amount of

greater than 1.1 million dollars.

Lastly, Fairfax Covenant has obtained substantial relief in the

form of a permanent injunction requiring that it pay no more than

civic and cultural groups that rent facilities in the future. See, e.g.,

id. at 198-99. When balancing this third Chevron factor with those

aforementioned, the Court must conclude that the retroactive appli-

cation of its decision is not warranted.

An appropriate Order shall issue.

/s/ Claude M. Hilton

UNITED STATES DISTRICT JUDGE

Alexandria, Virginia

March 11, 1993

ORDER

This matter came before the Court on Defendant’s Motion for

Prospective Relief Only, and on Plaintiff's Motion for Compensa-

tory Damages. For reasons stated in the accompanying memoran-

dum opinion, it is hereby

ORDERED that plaintiff's Motion for Compensatory Damages

is hereby DENIED, and Defendant’s Motion for Prospective Relief

Only is GRANTED.

/s/ Claude M. Hilton

UNITED STATES DISTRICT JUDGE

Alexandria, Virginia

March 11, 1993

35a

APPENDIX F

OPINION OF THE ATTORNEY GENERAL

OF THE COMMONWEALTH OF VIRGINIA

August 10, 1990

The Honorable Jane H. Woods

Member, House of Delegates

P.O. Box 1387

Fairfax, Virginia 22030

My dear Delegate Woods:

You ask whether the Fairfax County School Board (the “School

Board”), in regulating the use of school facilities by nonschool-

related community groups, may impose an increased rental charge

on churches or other religious groups that have used a school

building continuously for more than five years, while not applying

a similar increase to nonreligious groups after the same length of

time.

I. Applicable Regulation

Fairfax County School Board Regulation 8420 (“Regulation

8420”), dated July 1, 1986, which provides for community use of

school facilities, provides, in part:

Churches/religious organizations servicing Fairfax

County citizens may be granted use of a school for

as many as five years. Those desiring to establish

a long-term use (other than one-time use) for church/

religious organizations shall set up an appointment

with the coordinator, community use of school

facilities, for an orientation on procedures. Church/

religious groups may be authorized usage after five

years of use at increasing rental rates until the full

commercial rates become effective in the ninth year

of use. Only one church may have a contract for

continuing use of a single school during any school

year.

Id. § 11(G), at 3.

Regulation 8420 does not provide for a similar increase in rental

rates for nonreligious community organizations after five years of

continuous use of school facilities.

Il. Applicable Constitutional and Statutory Provisions

The Constitution of the United States provides that “Congress

shall make no law respecting an establishment of religion, or pro-

hibiting the free exercise thereof.” Jd. amend. I.

Article I, § 16 of the Constitution of Virginia (1971) provides,

in part:

And the General Assembly shall not prescribe any

religious test whatever, or confer any peculiar privi-

leges or advantages on any sect or denomination, or

pass any law requiring or authorizing any religious

society, or the people of any district within this

Commonwealth, to levy on themselves or others,

any tax for the erection or repair of any house of

public worship, or for the support of any church or

ministry; but it shall be left free to every person to

select his religious instructor, and to make for his

support such private contract as he shall please.

The Virginia Act for Religious Freedom, adopted in 1786, is

set forth in § 57-1 of the Code of Virginia and provides, in part:

37a

‘That no man shall be compelled to frequent or

support any religious worship, place or ministry

whatsoever, nor shall be enforced, restrained, mo-

lested or burthened, in his body or goods, nor shall

otherwise suffer on account of his religious opin-

ions or belief; but that all men shall be free to

profess, and by argument to maintain, their opin-

ions in matters of religion, and that the same shall

in no wise diminish, enlarge or affect their civil

Capacities.’

Id. (quoting Ch. XXXV, 12 Hening’s Statutes at Large 84, 86

(1785-1788)).

~ Section 15.1-24 authorizes counties, cities and towns to “make

appropriations of public funds, of personal property or of any real

estate to any charitable institution or association, located within

their respective iimits; provided, such institution or association is

not controlled in whole or in part by any church or sectarian society.”

Ill. Regulation 8420 Must Strike Balance Between

Allowing Free Exercise of Religion and Avoiding

Establishment or Support of Particular Religious Group

A local school board may exercise those powers and functions

granted to it expressly or by necessary implication. Commonwealth

v. Arlington County Bd., 217 Va. 558, 574, 232 S.E.2d 30, 40

(1977). A school board has the power, consistent with state stat-

utes and regulations of the State Board of Education, to operate and

maintain its public school buildings and to regulate their use by

nonschool-related groups. Section 22.1-79. In so doing, a local

school board may not, of course, violate the Constitution of the

United States or the Constitution of Virginia.

The First Amendment to the Constitution of the United States

prohibits Congress from making laws “respecting an establishment

of religion, or prohibiting the free exercise thereof.” The establish-

38a

ea tp RAGE mmr oe hee Re ewan

ment clause and the free exercise clause are made applicable to the

states and their localities by the Fourteenth Amendment.’ Cantwell

v. Connecticut, 310 U.S. 296 (1940). Read together, the establish-

ment clause and the free exercise clause stand for the principle that

neither governmentally established religion nor governmental inter-

ference with religion will be tolerated. Walz v. Tax Commission,

397 U.S. 664, 669 (1970).

Court decisions applying the free exercise clause make it clear

that public education officials may not deny religious groups access

to public facilities merely because they are religious. The modern

landmark case dealing with religious groups’ access to public edu-

cation facilities is Widmar v. Vincent, 454 U.S. 263 (1981). There

the Supreme Court of the United States held that, by making facili-

ties available for use by student groups, a state supported university

creates a limited public forum, and thereby assumes an obligation to

justify exclusion of other groups under applicable constitutional

norms. Jd. at 267. Finding that a state university’s policy of

excluding religious organizations from the use of university prop-

erty violated the fundamental principle that a state regulation of

First Amendment-protected activity should be content-neutral, the

Court held that,

[ijn order to justify discriminatory exclusion from a

public forum based on the religious content of a

group’s intended speech, the [state uJniversity must

therefore satisfy the standard of review appropriate

to content-based exclusions. It must show that its

regulation is necessary to serve a compelling state

interest and that it is narrowly drawn to achieve

that end.

| The principles of both the free exercise clause and the establishment clause

of the First Amendment are embodied in the provisions of the Constitution of

Virginia and the Virginia Act for Religious Freedom, quoted in Part Il of this

Opinion. See Crockett v. Sorenson, 568 F. Supp. 1422 (W.D.Va. 1983); Jones

v. Commonwealth, 185 Va. 335, 38 S.E.2d 444 (1946). Even if the First

Amendment were not applicable to the states and localities, therefore, Virginia

governmental entities still would be obligated to seek the same neutrality in

their dealings with religious groups.

39a

Id. at 269-70. In Westside Community Schools v. Mergens, 495

U.S. __, 110 L. Ed. 2d 191, 110 S. Ct. ___ (1990), the principles

established in Widmar were held applicable to state secondary

schools.”

Under the free exercise clause of the First Amendment, there-

fore, the School Board obviously could not exclude churches and

other religious groups from its facilities, as long as it allowed other

groups the same privilege. The inquiry does not end there, how-

ever, because the establishment clause also prohibits the School

Board from supporting any particular religious group. The in-

creased rental rate imposed by Regulation 8420 is the School Board's

method of attempting to avoid a level of continuing support that

would violate the establishment clause, or, in the Constitution of

Virginia’s terms, “confer any peculiar privileges or advantages on

any sect or denomination.” Art. I, § 16.

I am not aware of any federal or Virginia case specifically

addressing whether an increase in the rental rate charged to reli-

gious groups for use of school facilities after a certain period of

use, when a similar increase is not charged to other organizations,

strikes the appropriate balance between the free exercise and estab-

lishment clauses. A prior Opinion of this Office, however, con-

? In Westside, the Supreme Court of the United States was actually applying

the requirements of The Equal Access Act, 20 U.S.C.S. §§ 4071-4074 (Law. Co-

op. Supp. 1990), which obligate federally assisted secondary schools to permit

student religious groups equal access to the schools’ “limited open forums”

during noninstructional time. The Court found that the Equal Access Act did not

violate the establishment clause, and was, in effect, a statutory extension of

Widmar'’s principles to the secondary school level. The United States Court of

Appeals for the Third Circuit has concluded that “[iJn light of the Supreme

Court's decision in [Westside] it is now clear that a secondary school may, by its

acts, create a public forum implicating the same constitutional rules set forth in

Widmar.” Gregoire v. Centennial School Dist., Nos. 89-1658, 89-1692, slip op.

at 33 (filed June 22, 1990) (1990 U.S. App. LEXIS 10048).

40a

cludes that a board of supervisors could not lease a surplus county

school to a local church, because such an arrangement would place

the county in a position of providing aid to religion in violation of

the establishment clause. 1982-1983 Att’y Gen. Ann. Rep. 34.

Several cases in other jurisdictions have held that prolonged use

of school facilities by a religious congregation without evidence of

immediate intent to construct or purchase its own building would be

impermissible under the establishment clause. See O’Hara v. School

Bd. of Sarasota County, 432 So.2d 1356, 1358-59 (Fla. Dist. Ct.

App. 1983); Resnick v. East Brunswick Tp. Bd. of Ed., 77 N.J. 88,

389 A.2d 944 (1978); Pratt v. Arizona Board of Regents, 110

Ariz. 466, 469, 520 P.2d 514, 517 (1974); Southside Estates Bapt.

Church v. Board of Trustees, 79 A.L.R.2d 1142, 115 So.2d 697

(1959).

As discussed above, the holdings in Widmar and Mergens obli-

gate the School Board to base any treatment of religious groups that

differs from its treatment of nonreligious groups on a compelling

state interest, and to draw its regulation narrowly to serve that

interest. In the case of the provision of Regulation 8240 you ques-

tion, the compelling state interest is the need to abide by the require-

ments of the First Amendment establishment clause and Article I, §

j 16 of the Constitution of Virginia to avoid public support for a

particular religious group.

I note that Regulation 8240 does not eliminate a church group’s

use of school facilities after five years. It merely increases the

rental rate progressively, until it equals the commercial rate in the

ninth year. While Regulation 8240 admittedly does not impose a

similar increase on nonreligious community organizations that have

| met in school buildings for five years, such as scout troops or

neighborhood civic associations, the use by such nonreligious groups

poses no danger of an establishment clause violation. I note further

that if Regulation 8240 induces a particular religious group to move

out of a school, the result is not to eliminate religious use of that

school, but only to make the school available to other religious

groups.

4la

Based on the above, it is my opinion that the questioned portion

of Regulation 8240 is narrowly drawn to strike the constitutionally

required balance between allowing the free exercise of religion and

avoiding the establishment or public support thereof, and that the

Regulation is, therefore, a valid exercise of the School Board’s

powers under applicable federal and state constitutional and statu-

tory provisions.

With kindest regards, I am

Sincerely,

/s/

Mary Sue Terry

Attorney General

42a

CAL

APPENDIX G

DECLARATION OF JAMES M. PLUTTE

July 2, 1992

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

FAIRFAX COVENANT CHURCH,

Plaintiff,

v. CIVIL ACTION No.

92-743-A

FAIRFAX COUNTY SCHOOL BOARD,

Defendant.

1. My name is James M. Plutte, and I have personal know!l-

edge of the facts contained in this declaration. I am employed by

the Fairfax County School Board as the Coordinator of the Com-

munity Use Section, Office of Facilities Planning Services. I am

responsible for administering the rental of school facilities and ser-

vices for use during non-school hours. I am also responsible for

coordinating and publishing the fee schedule reflecting the charges

for the use of such facilities and services. Those fees are published

annually in Notice 8420.

2. Fees are divided generally into three categories: rental fees,

personnel services fees, and special fees. Rental fees are the fees

charged for renting such facilities as school cafeterias, gymnasi-

ums, auditoriums, classrooms and athletic fields. Fees for personnel

services are charged if a user requires administrative or custodial

staff, or certain technical assistance. Special fees are charged for

43a

the use of certain equipment. All users who pay special fees or fees

for personnel services are charged the same rate.

3. The amount of the rental fee, by contrast, varies depending

upon the nature of the use. There are three basic rental Categories:

no rental fee; the non-commercial rate; and the commercial rate.

Non-commercial rates are designed to cover the out-of-pocket cost

for the actual use of the facility, including heating and air-condi-

tioning, lighting and other normal utility use, and wear-and-tear.

Commercial rates are designed to approach the market rate that

would be paid for comparable facilities.

4. The same commercial rates are paid by private organiza-

tions, regardless of whether they are non-profit or for-profit, and

churches that have used the facilities for religious purposes for nine

years and longer.

5. The same non-commercial rates are paid by cultural and

civic groups based in Fairfax County, colleges and universities,

agencies of the state and federal governments, and churches that

have used the facilities on a temporary basis not exceeding five

years.

6. No rental fees are charged to the following groups (except

for certain fund-raising activities): the Fairfax County Department

of Recreation and Community Services, local county, city or town

agencies, officially recognized youth groups such as the Boy Scouts

and Girl Scouts, Fairfax County employee organizations, and offi-

cial student organizations and school-support groups (i.e., Parent-

Teacher Associations and Boosters).

7. Private groups charged the commercial rate have included:

wedding receptions; groups holding private parties or social events;

cultural and civic groups not based in Fairfax County; production

companies giving concerts; and businesses holding training meet-

ings or providing financial seminars.

ae V's ey tele kaa

8. Cultural and civic groups based in Fairfax County, and

charged the non-commercial rate, have included: Citizens for a Free

Vietnam (a Vietnamese cultural association) and the Azerbaijan

Cultural Association. There have been relatively few cultural and

civic groups in the past that have rented school facilities.

9. Of the following groups that rent school facilities — private

groups, cultural and civic groups, and churches - churches are

clearly the predominant users and account for a majority of such

rentals.

10. Approximately 51 churches currently utilize FCPS facili-

ties. Most churches use the facilities only on a short term basis.

Some churches, such as Fairfax Covenant Church, have sought to

use school facilities as their principal place of worship on a perma-

nent basis, and they have foregone acquiring their own church

facilities as a result. These churches make intensive use of school

facilities. For example, Fairfax Covenant Church holds its reli-

gious services every week at West Springfield High School. It

requires the use of the school auditorium, 14 classrooms, an auxil-

iary gymnasium and the parking lot. It has up to 800 weekly

worshippers. Its use is more intensive, substantial, and long-term

than any other non-church group.

11. Pursuant to Regulation 8420, churches that make use of

school facilities for nine years or longer are charged the same com-

mercial rental rate that is charged to other private users. By con-

trast, churches that make only sporadic or temporary use of school

facilities not exceeding five years are charged the lower, non-

commercial rate. Beginning in the sixth year, as church use ap-

proaches long-term or permanent use, the rental rate increases yearly

until, in the ninth year, it reaches the commercial rate that is charged

to all private users. Churches are not prevented from making long-

term use of school facilities thereafter, provided they pay the same

rate that is charged to all other private users. (Although a Standard

Operating Procedure states that churches in their first five years of

use are supposed to demonstrate their efforts to acquire their own

45a

church facilities, churches have not been required to make any such

showing. The Standard Operating Procedures are being revised to

reflect the actual practice).

12. Fairfax Covenant Church is currently in its eleventh year of

use at West Springfield High School. My office has no record of

Fairfax Covenant Church having ever objected to the rental

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.