Q: Some non-school sports organizations have approached the district about using the high school sports facilities for summer recreational leagues, including the outdoor football field and track, outdoor tennis courts, and the indoor basketball courts. May we allow these organizations to use our sports facilities, and may we charge them a fee for their use?
A: Yes, the District may allow the non-school sports organizations to use the District’s facilities, and may also charge the organizations, if it is provided for the District’s board policy.
School districts, like other private property owners, are not required to allow the use of their property outside of school hours, but may choose to do so by intentionally creating a public forum or limited public forum, either by policy or by practice. The use of district sports facilities for non-school related sports organizations during the summer is governed by Board Policies GKD (Legal) and GKD (Local). Most districts allow at least some use of district facilities for non-school purposes when the activities do not conflict with school use; however, many districts vary in the procedures to secure such uses.
Like all property owners, school districts may limit which facilities it opens to the public as well as the content that occurs during use. This is called a limited public forum. In such situations, districts may impose reasonable “time, place, and manner” restrictions on when, where, and how content is distributed based on the purpose of the forum so long as the restrictions are “viewpoint neutral.” See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985). For example, a district may choose to open its gymnasium during limited times throughout the summer for the purpose of recreational leagues to host basketball games and tournaments. The district may restrict a league’s access to certain district facilities on certain days and between certain hours as reasonable time and place restrictions. Further, during the time proscribed for the games or tournaments, the district may prohibit other organizations from attempting to use the gymnasium for purposes that are not related to basketball games or tournaments because such reasons are unrelated to the purpose for the creation of the limited forum. The district may not, however, prohibit use by a league based solely on the viewpoint of the organization (e.g. grant access to AAU but deny access to an LGBT association).
Districts will generally require that those wishing to make use of district facilities gain approval from the Superintendent or designee with authority to approve such uses. For continuous uses over a protracted period of time, some districts require the requesting party to enter into a contract or other rental agreement as a lessee and/or provide evidence of liability insurance coverage for any damages that occur during the use. On the other hand, districts may allow the public use of certain facilities without any prior approval required. These facilities often include unlocked, outdoor recreation facilities, including playgrounds, tracks, soccer fields, and tennis courts.
Texas Education Code Section 45.033 allows school boards to set and collect rentals, rates, and charges for use of a district’s facilities. Because the school boards set the rates, the charges vary by district so it is important that each district makes their prices available to the public. Common charges include the fees for the operation, supervision, or clean-up costs at the facilities used. Additionally, Districts may grant fee exceptions for certain groups, such as use by employee professional organizations or public meetings sponsored by state or local governmental agencies. While discretionary exceptions are permitted, it is important that the district not “gift” public funds and that it not discriminate, or appear to discriminate, against certain viewpoints.
Because Board Policy GKD (Local) may vary greatly by district, when approached by a non-school organization regarding the use of certain district facilities during the summer, district personnel should consult Board Policy GKD (Local). When in doubt about whether and when certain facilities may be used by the public or whether the district may charge a fee for the use, district personnel should consult legal counsel.