Renting school buildings to religious organizations: legal?

Heather Greene —  February 16, 2014 — 9 Comments

This past week Hawaii’s New Hope Churches agreed to settle a lawsuit originally filed in March 2013 by citizen activists Mitchell Kahle and Holly Huber. The “qui tam whistle-blower” lawsuit argues that these New Hope churches misrepresented time spent renting public school facilities costing the school millions in lost revenue. In an August press release, the plaintiffs claim that there has in fact been “widespread abuse and outright fraud perpetrated by churches often with the explicit approval or knowledge of school principals and/or their designees.”



The New Hope Churches make up only 3 of the 5 original defendants. Along with New Hope, the Calvary Chapel of Central Oahu and One Love Ministries were also accused of falsifying records to avoid paying rental and utility fees. The plaintiffs estimate that New Hope Oahu alone owes 3.2 million for the rental of Farrington High School. In their press release, Kahle and Huber claim:

There is long‐standing and widespread abuse in the DOE’s “Community Use of School Facilities Program.” The abuse has cost taxpayers millions of dollars in lost revenue, and million‐dollar losses are continuing every year because of unpaid rental fees and utilities charges by literally hundreds of churches operating out of nearly as many public schools.  [We] have called for the entire program to be audited, reformed and for all monies owing to be collected.

Following the August hearings, two of the churches fired back asking for the case to be dismissed. In October, the Alliance Defending Freedom on behalf of the Calvary Chapel of Oahu and One Love Ministries filed such a request arguing that “[The school system] was fully aware of the terms and conditions of use … That’s not fraud.” In December the court granted that request but also has allowed the plaintiffs 45 days to re-file their complaints. In response attorney Jim Bickerton said, “If you think about it, what has been the result here? We are just going to put more detail into the public record. How that advances the churches cause I’m not sure.”

Then Wednesday, Feb. 12, the Hope Churches announced that they would settle rather than undergo a costly legal battle. Through their parent company, the three churches will pay $775,000 of which $200,000 will go to plaintiffs Kahle and Huber for bringing the case to the courts. Despite the settlement, the churches never admitted to any fraudulent behavior.

Mitch Kahle

Mitch Kahle

As an atheist activist, Kahle is no stranger to this type of legislative action. In 2010 he and a friend, Kevin Hughes, publicly protested the Hawaii State Senate’s practice of opening their session with religious prayer. Kahle’s short vocal protest, captured on video, led to his arrest. He was discharged but later filed a successful lawsuit against the state for abusive action. The state awarded him $100,000 in damages. Bickerton was his attorney in the case.

Because of his protest and a follow-up by the American Civil Liberties Union, Hawaii became the first state to ban prayer in its legislative body. Kahle went on to file several other related lawsuits; the results of which are unclear.

As suggested by past activities, Kahle’s interest in the current church situation is not the protection of children, the funding of education or the recuperation of tax payer dollars. He is solely interested in ejecting religion from the public sphere. Kahle said, “The state was subsidizing the churches for many, many years.” That amounts to church-sponsored religion.

The churches’ failure to pay the appropriate rental fees does not truly equate to a loss of taxpayer funds or subsidizing. The school buildings would sit empty otherwise costing money to maintain either way. Whether the churches committed fraud and whether the school board knew is an entirely different issue and up to the courts.

However Kahle raised a valid question. Is any of this legal?  If so, should it be? Should churches or any religious institution be allowed to conduct services, collect money and preach their gospel on government school property? Does this practice violate the Constitution? If religious groups can rent public parks and other similar community facilities, why not schools? Are schools different?

Photo Courtesy of "Beyond My Ken" (Wikipedia CC License)

Photo Courtesy of “Beyond My Ken” (Wikipedia CC License)

In 2012 the Supreme Court of the United States (SCOTUS) refused to hear a case that asked this very question. In Bronx Household of Faith v. Board of Education of the City of New York, a US Federal Appeals Court upheld a newly instated New York City School Board policy  banning the rental of public school buildings to groups that “discriminate on the basis of race or religion.” The NYC School Board believes that this practice “improperly advances religion.” SCOTUS’ refused to hear the case leaving all regulation up to the municipalities. In 2013 over 60 New York City churches had to find new accommodations for their Sunday services.

Does a Sunday sermon in an empty school building “advance religion?” If the buildings are unused and only costing taxpayer money, why not rent them out to anyone willing to pay the fees? Often renting a school is cheaper and more convenient than renting a private facility. USA Today highlighted this topic in a 2010 article entitled, “Instant churches convert public schools to worship spaces.” The article points out that these “instant” churches rent the low cost space temporarily while collecting donations to be used toward the tax-free purchase of their own space. Is that simple economics or problematic loop-hole?

School Gymnasium Photo Courtesy of David Shankbone

School Gymnasium Photo Courtesy of David Shankbone

Of course, there is one line that has yet to be crossed. What if the renting church was not Christian? Consider the words of Lifeway vice president Ed Stetzer,

So if a Wiccan coven wanted a use permit, you would have to be as neutral as you would with an evangelical church. … You would have no way to stop them.

Lifeway, a Christian resource company, is a supporter of school rentals. However as Stetzer points out, what’s good for Christian churches is good for everyone else. If schools do choose to rent the facility to religious organizations, they must rent uniformly. This Constitutional caveat clearly scares Lifeway’s Vice President.

Hawaii’s Department of Education, like many other school districts, makes it very clear that the possibility is real. Chapter 39 of its Administrate Rules states:

All public school buildings, facilities, and grounds shall be available for general recreational purposes and for public and community use whenever these activities do not interfere with the normal and usual activities of the school and its pupils as provided by law.  This general rule shall be carried out within the policy of the department of education that no available public school building, facility or grounds shall be denied for use by the public and community on the grounds of race, color, religion, sex, age, national origin or disability.

Stetzer is correct. There would be no way to stop a Pagan or Heathen group from renting a school facility in order to host a religious ritual or class over a weekend.

In general these rental practices are supported legally through Board policy across the country. Money earned defers the cost of maintaining a large, expensive facility. Regardless we must return to the original question posed by Kahle’s activism and the NYC case. Does this activity amount to the government sponsorship of religion, whether that religion is Pagan, Heathen, Jewish, Hindu or Christian?  Does renting the school grounds to churches of any faith “advance religion?” If not, where and how should the lines be drawn and who should be monitoring the practice?


Heather Greene

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Heather is a freelance writer, film historian, and journalist, living in the Deep South. She has collaborated with Lady Liberty League on religious liberty cases, and formerly served as Public Information Officer for Dogwood Local Council and Covenant of the Goddess. She has a masters degree in Film Theory, Criticism and History from Emory University with a background in the performing and visual arts. Heather's book on witches in American film and television will be published by McFarland in 2018.