Fourth Circuit holds Anderson School District Five violated First Amendment with fee-waiver rules regarding use of school property

In CHILD EVANGELISM v. ANDERSON SCHOOL DIST. FIVE, he Child Evangelism Fellowship of South Carolina ("CEF") challenged policies under which it was denied a fee waiver for religious club meetings that it sought to hold in the facilities of Anderson School District Five. CEF argued that the school district violated the First Amendment by permitting school officials to waive fees "as determined to be in the district's best interest." The district court concluded that this language was vague enough to allow school administrators to violate the First Amendment by treating speakers differently based upon their views, but found no constitutional problem because it concluded that the school district had not engaged in viewpoint discrimination.

The Fourth Circuit reversed, holding that the fee-waiver rules cannot be squared with the prohibition on unfettered discretion so essential to viewpoint neutrality under the First Amendment. The fee-waiver rules authorized administrators to waive usage fees "as determined to be in the district's best interest"--conveying, by its terms, an apparent carte blanche.