By Ricardo L. Gilmore, Esq., Shareholder
Published in FAHROgram March/April 2018 edition

Over the years, many executive directors and presidents/CEOs have been faced with how to handle requests from third-party groups, like churches, to use the community facilities at housing authority complexes. Recently, on the HDLI listserv, this question came up for discussion. It was eventually addressed with some current analysis by the president/general counsel of HDLI, Lisa Walker. With her permission, I have used parts of her response in this article.

The query presented was: Our housing authority has received a request from a church to host its Sunday service in a community center owned by the housing authority and located at one of its public housing developments. The church has offered to pay for its use of the space. We are leaning towards declining this request, but want to make sure that we are on solid legal ground in so doing. We have reviewed the Federal Agency Final Regulations Implementing Executive Order 13559, but it doesn’t seem to squarely address this issue.

Ms. Walker responded that she had found the following cases have addressed the issue on First Amendment freedom of speech grounds. Two cases are directly on point and have found a PHA’s refusal to allow a religious group to use its community rooms for religious purposes constituted viewpoint discrimination under the First Amendment. The first case was His Healing Hands Church v. Lansing Hous. Comm’n, 233 F. Supp. 3d 590 (WD. Mich. 2017). In that case, the PHA controlled access to the community rooms and kept them locked when not in use. The PHA allowed residents to use the rooms for private parties and other events. PHA staff used the community rooms to conduct meetings and to put on events for residents. The PHA allowed outside groups to use the community rooms so long as the purpose was to benefit the residents. The PHA did not allow outside groups to use the community rooms for “religious worship, services, or programs.” The court held the PHA’s refusal to allow groups to use its community rooms for religious purposes constituted viewpoint discrimination. The court entered preliminary and permanent injunctions against the PHA.

The second case was Dailry v. NYCHA, 221 F. Supp.2d 390 (2002). The PHA used its community rooms for its own programs during parts of the day, but permitted use by tenant associations and other tenant groups and for family celebrations during other parts of the day. A religious organization requested permission to use the community rooms for post 9-1-1 grief counseling. The PHA denied the request on grounds that it could not permit religious activity on its property. During periods the community rooms were used by the PHA for its own programs, the space was a “non-public forum,” and no one else had a right to use it. During the periods when it was not in use by the PHA and others were permitted to use it, it was a “limited public forum,” and the PHA could limit use of the room to certain types of activities. The type of activity the religious organization intended to conduct was consistent with the type of PHA permissible activities, and differed from them only in that the activity would be conducted with a religious viewpoint. The PHA could not deny the right to use the room based only on the viewpoint of the organization.

The bottom line gleaned from this analysis is that if your PHA uses your community spaces for PHA business, then those spaces are non-public forums during the time of the PHA activity and you can deny use to others during that time. But if your PHA also permits other groups to use the community space for activities such as Alcoholics Anonymous programs, Boy Scouts and Girl Scouts meetings, after-school programs, tutoring, etc., then the spaces are limited public forums at those times, and you cannot deny a religious group permission to use the space based solely on the grounds that the activity will be of a religious nature. Your PHA may limit the activities it permits; however, once the activity (or similar activity) is allowed for a secular group, it must also be allowed for a religious group.

Other useful cases and holdings are as follows:

Perry Educ. Ass’n v. Perry Local Educators Ass’n, 460 U.S. 37,45-46, 103 Sup. Ct. 948, 954-55 (1983) (holding once a forum is deemed to be a limited public forum or a public forum, the government may not limit the use based on the content of the message of the user, or the characterization of how the activity will be conducted, based on its content).

Miller v. City of Cincinnati, 622 F. 3d 524, 534 (6th Cir. 2010) (holding that the government creates a designated public forum when it opens a piece of public property to the public at large, treating it as if it were a traditional public forum).

Pleasant Grove City v. Summum, 555 U.S. 460, 469-70, 129 S.Ct. 1125, 1132, 172 L. Ed. 2d 853 (2009) (holding that governmental restrictions based on the content of speech in traditional and designated public forums are subject to strict scrutiny analysis).

Cuffey v. Mickcs, 208 F.3d 702 (8th Cir. 2000) (holding that a municipality may not bar an organization (here, the Ku Klux Klan) from expressing hate messages in a public forum because its message is distasteful or repugnant to the municipality).

Good News Club v. Milford Central School, 533 L.S .98 (2001) (holding that distinctions cannot be drawn based on whether the message is religious or non-religious).

Other cases that also have held the PHA spaces to be non-public forums:

De la O v. Hous. Auth., 417 F. 3d 49 5 (5th Cir. 2005) (public housing facilities constitute non-public forums regarding door-to-door dissemination of literature); Daniel v. City of Tampa, Fla., 38 F.3d 546, 550 (11th Cir. 1994) (PHA property is a nonpublic forum for purposes of disseminating pamphlets); Crowder v. Housing Auth., 990 F.2d 586, 591 (11th Cir. 1993) (library of housing project is a non-public forum).

Practically speaking, PHAs should have an actual policy in place that lays out the PHNs rental and/ or use policy for everyone, as well as a procedure to request use of the community room. I like a form for this purpose to collect all relevant information each time. This should include, but not necessarily be limited to, providing proof of insurance by the group and appropriate release language. Most importantly, all groups should be treated in a consistent manner. Finally, please consult your agency counsel when finalizing your policy and procedure.

Thanks again to HDLI and Ms.Walker for the input.

 

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