School Board Rents Space to Community Groups, But Wants to Exclude Anti-Homosexuality Speaker

Local10.com (South Florida) reported several days ago:

The Miami-Dade County school district is looking to evict a pastor who rents space in a public school to preach. …

[Pastor Jack] Hakimian preaches and teaches inside North Miami Senior High School every Sunday.In a recent sermon, he compared homosexuality to drug abuse and witchcraft.

Other sermons are titled: “Gays and Sex Addicts Can Change and Should Change” and “Pedophiles Use the Same Argument as Homosexuals and the Weed Smoking Community.”

In a statement to Local 10, Superintendent Alberto Carvalho said Hakimian’s teachings “appear to be contrary to school board policy, as well as the basic principles of humanity, and I have asked for immediate legal review to seek the termination of the contract that is involved. … I am making this decision not on the basis of policy or politics but as a rejection of prejudice and intolerance.” …

Now a school can certainly refuse to rent space altogether, or rent it only to a few favored groups. But School Board policy provides that, “District grounds and facilities should be made available for community purposes, provided the use does not infringe on the original and necessary purpose of the property or interfere with the educational program”; and indeed, according to Local10.com, “90 different religious organizations rent space in a Miami-Dade school buildings.” Many nonreligious organizations seem to do the same: “Religious rent generates $630,000 a year. Add all organizations, and $3 million a year is generated in rent.”

And this means that the government may not discriminate based on viewpoint in its program, see, e.g., Lamb’s Chapel v. Center Moriches Union Free School Dist. (1993). That’s so even if the school district concludes that the pastor’s teachings somehow “interfere with the educational program.” When the school district opens up its property to speech other than its own, or that of a few groups that it endorses, it is barred from discriminating based on viewpoint.

The district seems to justify its position by saying that, “A district spokesman said it appears Hakimian’s words contradict a nondiscrimination policy, which includes sexual orientation.” And the school can probably bar discrimination on school property, for reasons given in Justice Stevens’ concurrence in Christian Legal Society v. Martinez (2010) (and also here), for instance if a speaker wanted to exclude gay audience members, or black or white or male or female audience members. But the majority in the Christian Legal Society case defended its decision — which I think ends up pointing in the same direction as the Stevens concurrence — precisely on the ground that,

Although registered student groups must conform their conduct to the Law School’s regulation by dropping access barriers, they may express any viewpoint they wish — including a discriminatory one. Today’s decision thus continues this Court’s tradition of “protect[ing] the freedom to express ‘the thought that we hate.'”

Speech thus doesn’t lose its constitutional protection simply because the government labels it “discrimination” on the grounds that the speech is hostile to particular sexual orientations, religions, races, or what have you. Viewpoint discrimination is impermissible, even when it comes to access to government property (once that’s been opened to groups beyond just the government and a few government-selected speakers) — and that fully includes anti-homosexuality (or pro-homosexuality) viewpoints.