Decision No. 13,643

(August 7, 1996)

SHELDON, Acting Commissioner.--Petitioners appeal from certain policies and practices of the Board of Education of the Hempstead Union Free School District ("respondent") regarding the use of school buildings. The appeal must be dismissed.

To alleviate overcrowding in its district, respondent leased two buildings from the Roman Catholic Diocese of Rockville Centre. The buildings were previously used as a convent and a Catholic school and are located on the same block as a Roman Catholic church. Over the entrance to one of the buildings used for respondent's early childhood center is a cross, approximately three feet tall, inscribed in masonry. Approximately 40 feet away from that entrance, there is a flagpole with a cross attached to the top. Petitioners contend that these religious symbols are constitutionally impermissible on facilities used to provide public instruction.

Petitioners also challenge respondent's policy regarding the use of its public school auditorium facilities by certain groups for which donations may be solicited. Petitioners assert that aspects of that policy violate Education Law '414, alleging that respondent permits commercial and religious organizations to use the facilities and charge admission fees to benefit the organization in violation of statute. Petitioners request an order barring the collection of funds by commercial and religious groups while using public school facilities or directing that any funds collected be strictly accounted for and go to the exclusive use of the public school children. Additionally, petitioners request that I direct that respondent's school facilities not be used for propaganda, or dissemination of political or religious information.

Respondent denies that its policy violates Education Law '414 and asserts that the policy has been properly applied.

Initially, I note that petitioners' claims regarding the religious symbols on school grounds are moot. The record indicates that the symbols have been covered or removed and are no longer visible to the public school children in the leased facilities. The Commissioner of Education will not decide issues which subsequent events have put to rest (Appeal of Goldin, 35 Ed Dept Rep 446).

With respect to the use of public school facilities within respondent's district, Education Law '414(1)(d) provides in pertinent part:

Petitioner contends that respondent permits its facilities to be used for events by commercial organizations where the proceeds collected at such events are not expended for education or charitable purposes, but are kept by the commercial organization. In response to that allegation, respondent submits its policy for the use of school facilities which indicates that any organization seeking to use any of its facilities must submit, along with its application, evidence of not-for-profit status. While respondent's policy permits an outside organization to charge an admission fee during the use of school facilities, any such fees collected must be used for educational or charitable purposes. Petitioners submit no evidence of any specific incident wherein such policy was not followed.

Petitioners also contend that respondent has allowed religious groups to use the schoolhouse facilities for occasions under the religious group's exclusive control and have not complied with the admissions fee provision of Education Law '414(1)(d) in that some of the fees collected were not expended for educational or charitable purposes but, instead, were kept for the benefit of the religious organization. However, petitioners submit no evidence that any permitted use has been under the exclusive control of the organization holding the event. To the contrary, respondent submits its guidelines for public use of Hempstead school facilities which contain 13 parameters which appear to vest a large amount of control with respondent school district.

Moreover, even if the schoolhouse facility use was under the complete control of a religious organization, petitioner has not established in the record that respondent failed to comply with the fee provisions of Education Law '414(1)(d). In its answer, respondent submits a "use of facilities" application agreement that must be completed by anyone wishing to use district facilities. On the application applicants must state how the proceeds from the event will be used. With respect to the particular event challenged by petitioner, the application submitted to respondent by the Church for the Art of Living, Inc. indicated that the facility would be used for "a musical and speaking" and that donations would go, in part, to the Hempstead High School Scholarship Fund. Petitioners claim that the proceeds from the event held by the church were not entirely used for the benefit of the scholarship fund. However, respondent denies that allegation, and petitioners submit no evidence to the contrary.

In an appeal to the Commissioner of Education, the petitioner has the burden of proof (Appeal of Pinckney, 35 Ed Dept Rep 461). Because petitioners have not substantiated their claims, they must be dismissed. There is no evidence that respondent has not complied with the provisions of Education Law '414 in their entirety. There is no evidence in the record that respondent has impermissibly permitted commercial use of its facilities or that, where not-for-profit groups have held events on school premises, proceeds have been applied in violation of Education Law '414(1)(d). In this instance, although the application indicates that the proceeds would go "in part to the Hemp[stead] High Scholarship Fund", respondent asserts that the proceeds were applied for a charitable purpose, and petitioners submit no evidence that any of the proceeds were applied improperly for any other purpose. Absent such proof, petitioners' claims must be dismissed.

Finally, petitioners' request for an order banning school use for propaganda/political/religious dissemination must be denied. It is improper for a school district to ban the use of its facilities for permitted topics merely because the presentation would be from a religious perspective (Lamb's Chapel v Center Moriches Union Free School District, 113 S. Ct. 2141 [1993]). Furthermore, mere controversy is not a permissible basis for the denial of access to a designated or limited public forum (Travis v Owego-Apalachin School District, 927 F2d 688 [2nd Cir. 1991]). It is clear that respondent district has generally allowed the use of its facilities for public speech and for the public discussion of a variety of issues. To bar the discussion of issues deemed by some members of the community as propaganda, political or religious is impermissible.

THIS APPEAL MUST BE DISMISSED.

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