The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Can Public School Block Rentals by Church That Had Speaker Who Said She'd Stopped Being Lesbian?
From the San Diego Union Tribune (Kristen Taketa):
On the first Sunday of this month, the pastor of a Scripps Ranch church brought in a guest speaker who talks about how she came to believe being gay is wrong.
The venue was San Diego Unified's Marshall Middle School, where the church has held its services for the better part of two decades.
The speaker was Patti Height of Out of Egypt Ministries, who told her audience she used to consider herself gay but now believes that was a "false identity." According to her website, her work aims to help Christians minister to LGBTQ people, believing that being gay is incompatible with being Christian….
Scripps Ranch residents and Marshall Middle parents are among more than 600 people who have signed a petition calling for San Diego Unified to terminate its rental agreement with Canyon Springs, contending that the church is violating the district's anti-discrimination policy by endorsing anti-LGBTQ speech. A Marshall Middle parent filed a complaint with the district, also asking the district to end its contract with the church.
Even though the church holds its events outside of school hours and the church is separate from Marshall Middle, some parents and activists argued that students could still be affected by the knowledge that their school had provided a forum for somebody who condemns homosexuality….
The petition appears to be here; but I don't think the school can act on it by excluding such speech from events on its property, given the First Amendment.
As I understand it from talking to the reporter, the school district has a general rental policy under which groups can rent space. That makes it a so-called "limited public forum"; and in such a forum, the government may impose some reasonable viewpoint-neutral restrictions, but not viewpoint-based ones. An exclusion of speech that is critical of homosexuality, or that endorses sexual orientation change efforts, would be viewpoint-based, and thus unconstitutional. (Likewise, courts have concluded that exclusion of pro-gay-rights groups from limited public fora, including ones at schools, is likewise unconstitutionally viewpoint-based.)
Indeed, Lamb's Chapel v. Center Moriches Union Free School Dist. (1992) expressly held that viewpoint discrimination was impermissible in a program that allowed groups to use public school space after hours. And it also expressly held that this rule applied to religious institutions and religious speech as well. Once the government opens up a space to groups generally, it can't exclude them based on viewpoint. (Lamb's Chapel described the forum as a "nonpublic forum" rather than a "limited public forum," but the prohibition on viewpoint discrimination applies to both categories; and in more recent cases, the Court has characterized that kind of property as a limited public forum, see Good News Club v. Milford Central School (2001).)
It's possible that the school district could just decide that it doesn't want these sorts of controversies, and close the rental program altogether (though the rules as to that are a bit complicated). But so long as it allows such rentals, it can't exclude anti-homosexuality views any more than pro-gay-rights views, anti-war views, anti-police views, or other views.
