# Petition for Writ of Certiorari — Fairfax County School Board v. Fairfax Covenant Church > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1605%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1994 - **Citation:** 511 U.S. 1143 ## 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, V. 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 - P. 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, v. 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). 3 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. . . .” es 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 5 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, 9 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- 10 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.”). 1] ee 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). 12 ————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, 14 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 15 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 16 “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.”). 17 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). 18 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 20 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- © School boards in other states have had similar experiences. E.g., Resnick v. 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). 22 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). 23 ee 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). 25 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). 26 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. 27 Nn 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. . . .”). 29 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, v. 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: la 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. I 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 2a 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. 3a 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 4a 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. Sa Il 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 6a 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. 7a j 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 8a 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 9a 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, We 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, v. 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, cultur [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1605%3A1. Public record. Not legal advice.