South Carolina district's policy ruled unconstitutional

By Larry O'Dell, The State, (Columbia, South Carolina), December 16, 2006

A South Carolina school district's policies that denied a religious club free meeting space violate the First Amendment's prohibition against viewpoint discrimination, a federal appeals court ruled Friday.

A three-judge panel of the 4th U.S. Circuit Court of Appeals said the policies gave Anderson School District Five administrators too much leeway in deciding which organizations would be charged for use of school property.

The panel ordered the district to refund $1,545 the Child Evangelism Fellowship of South Carolina paid over two years to rent meeting space for its "Good News Clubs." The nondenominational clubs, open to children ages 5-12, conducted Bible lessons and other religious activities.

The clubs were first denied free access under a policy that waived fees for other school organizations and groups like the Boy Scouts. Other groups, ranging from the Kiwanis Club to a number of churches, were charged for the use of space.

The policy included a phrase allowing the district to "waive any or all charges as determined to be in the district's best interest." The policy was later amended to eliminate the "best interest" provision but to continue waiving the fee for groups with a long history of meeting on school property for free.

CEF sued after school officials refused its requests for a fee waiver. U.S. District Judge Henry M. Herlong Jr. dismissed the lawsuit, ruling that the district had applied the "best interest" provision in a viewpoint-neutral fashion.

However, Judge J. Harvie Wilkinson III wrote in the unanimous opinion that "the unfettered discretion conferred by district policy presents such a risk of viewpoint discrimination as to run afoul of the First Amendment."

Wilkinson was joined in the opinion by Judges Karen Williams and M. Blane Michael.

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