Hennessey v. Independent School District No. 4, Lincoln County

1976 OK 101, 552 P.2d 1141

• Court: Supreme Court of Oklahoma
• Decided: July 27, 1976
• Docket: 48751
• Status: Published

Opinions

DOOLIN, Justice.

This is an action filed in the district court by the Wellston Parent Teacher Association (PTA) seeking a writ of mandamus to require Independent School District No. 4, Lincoln County School Board (Board) to allow PTA use of school facilities for its meetings. The trial court denied the writ. PTA appeals to this court claiming action by Board is arbitrary, discriminatory and a denial of rights guaranteed by the Constitution of the United States and Oklahoma in that Board has permitted certain other groups access to the building for their meetings to the exclusion of PTA with no rational basis for such distinction.

We agree with PTA and therefore reverse and remand this cause to the trial court with directions to issue the writ as requested.

Board has uniformly permitted outside organizations such as Lions Club, Young Homemakers’ Organization, Booster Club, 4H Club, Boy Scouts, Bible Lovers’ League and Vocational Agriculture Teachers to use the building as authorized by 70 O.S.1971 § 5-130 which provides:

“The board of education of any school district may, under such regulations and condit ms as it may prescribe, open any school building and permit the use of any property belonging to such district for religious, political, literary, cultural, scientific, mechanical or agricultural purposes, and other purposes of general public interest and may make a reasonable charge to cover the cost of the use of such building and property.”

The use of these organizations has been with permission of the superintendent and such requests have not necessarily been submitted to Board for its approval. PTA applied several times to Board requesting that it be permitted use of the building and each time its application was denied. There is no evidence any other organization has been refused.

At some time after PTA’s first request was denied, Board adopted rules for use of school property by outside organizations. These rules, in addition to general platitudes, contained the following provisions:

The Wellston School Board will not tolerate nor continue affiliation with any organization that it determines to be disruptive to or unsupportive of the school board or any part of the school system. The Wellston School Board of Education reserves the legal right under state law to, at any time, discontinue any affiliation it might have with any outside organization and refuse the use of school property when it should possibly determine such actions are warranted. Organizations as whole or organizations that allow their members to carry on in a fashion that attempts to exercise school board or administrative authority or interfere with that authority, exploit school ■children for personal gain, deal in personalities, or engage in frequent criticisms against the school system and the school personnel in particular, will not be tolerated and the use of school property by such organizations will be discontinued, and the school board will withdraw its approval of affiliation with such organizations. ******” (Emphasis supplied).

Board further provided a form to be completed by an organization requesting use of the building, stating the organization will abide by the rules for use of school property. Although the agreement was never submitted to PTA by Board, PTA has always been ready and willing to sign it, and admittedly was not turned down by Board because of any refusal to execute the agreement.

Board’s refusal to allow PTA to use its building fails for the following reasons:

First, there is no evidence any of Board’s stated rules, constitutional or otherwise, have been violated. The record is absolutely void of any testimony as to any legitimate reason why PTA should be forbidden use of the building, or that PTA is not supportive of the school system. The Superintendent oí Schools testified he had no personal knowledge of any past action of PTA that would be considered a violation of Board’s regulations.

The general statement in the minutes of the Board that use by PTA of school facilities would not be in best interests of community is unsupported by any evidence. To the contrary, it was shown that in the past PTA has sponsored many admittedly worthwhile activities for the community children. The superintendent admitted the guidelines and objectives of PTA are all worthwhile. He indicated PTA’s request was refused because a vote of the teachers showed a majority of them were not interested in becoming members of PTA. PTA is chartered and supported by both the state and national Parent-Teacher Association. There is nothing in either organization’s rules or guidelines requiring teachers to be members in order to be recognized.

Board’s reasoning is circulus in proban-da-, PTA is not comparable to other organizations, because the Board does not officially recognize it, since it is not comparable to other organizations. 70 O.S.1971 § 5-130 was certainly not intended to omit PTA objectives from its list of permitted purposes and it cannot be successfully argued PTA is not comparable to the acceptable organizations.

The other grounds for reversal are constitutional. Board’s rules and regulations as set forth above and their implementation violate the first and fourteenth amendments to the Constitution of the United States as an abridgment of freedom of speech, and a denial of equal protection and further are a violation of the Constitution of Oklahoma Art. 2, § 22. A regulation by a governmental body such as a school board which permits a public official or body to-determine what expressions or views will be permitted or allows the board to engage in invidious discrimination among groups by use of a statute granting discretionary powers and by a system of selective enforcement cannot stand.¹ A governmental body may not restrict expressive activity because of its message. Free expression must not, in the guise of a regulation, be abridged or denied.² Board as instrumentality of state may not restrict speech simply because it finds views expressed by any group abhorrent.³

A school board’s denial of use of school facilities to a political party because it did not agree with the policies of the organization has been held to be an invalid prior restraint.⁴ Prior restraints in order to withstand constitutional attack must be narrowly drafted so as to suppress only that speech which presents a clear and present danger of resulting in serious substantial evil.⁵ Board’s regulations do not withstand such attack and are invalid because they exceed constitutionally permissible limitations on freedom of speech.⁶

There is no doubt 70 O.S.1971 § 5-130 gives Board absolute discretionary authority as to whether or not to open a school building to activities and meetings of outside organizations. The only absolute discretion exercised however is whether to open the building to outside organizations or not to open it. Once this discretion has been exercised and the decision has been made to permit use of property for any of the enumerated purposes, then it must not adopt a discriminatory and unconstitutional policy as to who will be allowed access to its facilities. Its classifications must be reasonable. Discretion of an administrative body must not be used in a discriminatory matter. Administrative action must have a reasonable or rational basis if it is to avoid the stigma of arbitrariness.⁷ All governmental bodies must remain within bounds of the Constitution.⁸

A school board may withhold school facilities altogether from use by non-scholastic groups or may make reasonable classifications in determining availability.⁹ The state may control the use made of its premises but not without regard to the Constitution.¹⁰ The equal protection clause precludes a school from censoring expressions because it does not like its content or message, and it requires a state authority to deal with similarly situated organizations in an even handed manner. The privilege of using a school should be available on a reasonable basis.

A state is under no duty to make school buildings available for public gatherings and a school board is not prevented from barring its use for unlawful purposes. But where a school district allows a number of organizations to use its facilities for non-academic purposes, a board must not unconstitutionally discriminate against any comparable applicant in deciding who will and who will not be permitted its use.¹¹

REVERSED.

WILLIAMS, C. J., HODGES, V. C. J., and BERRY, BARNES and SIMMS, JJ., concur. IRWIN, J., concurs in results. DAVISON, LAVENDER, JJ., concur specially.

1 . Cox v. State of Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965).

2 . Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972).

3 . Joyner v. Whiting, 477 F.2d 456 (4th Cir.1973) ; Friedman v. Union Free School District No. 1 Town of Islip, 314 F.Supp. 223 (E.D.N.Y.1970) ; Cannon v. Towner, 188 Misc. 955, 70 N.Y.S.2d 303 (1947).

4 . National Socialist White People’s Party v. Ringers, 473 F.2d 1010 (4th Cir. 1973).

5 . Schench v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (1919).

6 . Stacy v. Williams, 306 F.Supp. 963 (N.D. Miss.1969).

7 . Atewooftakewa v. Udall, 277 F.Supp. 464 (W.D.Okl.1967).

8 . Winters v. Governor’s Special Committee, 441 P.2d 370 (Okl.1967).

9 . Ellis v. Dixon, 349 U.S. 458, 75 S.Ct. 850, 99 L.Ed. 1231 (1955).

10 . Dunkel v. Elkins, 325 F.Supp. 1235 (D.Md. 971).

11 . East Meadow Community Concerts Association v. Board of Education of Union Free School District No. 3 County of Nassaai, 18 , 272 N.Y.S.2d 341, 219 N.E.2d 172 (1966) ; Buckley v. Meng, 35 Misc.2d 467, 230 N.Y.S.2d 924 (1962) ; American Civil Liberties Union of Virginia, Inc., v. Radford College, 315 F.Supp. 893 (W.D.Va.1970).