The Open Door Church has sued the Sun Prairie (Wis.) Area School District in federal court in Madison. The complaint alleges that the district has adopted a broad policy permitting community groups to use the district’s facilities. However, the district seems to have adopted a policy of permitting waiver of rental charges for all potential users, except religious groups. As a result, the church has paid a fee for using a school classroom for weekly meetings of a club for children, while a variety of other groups, allegedly engaging in similar but nonreligious uses, were not charged.

Although the district has now changed its policy to require that all groups be charged, it has grandfathered those users for whom fees have already been waived, thus perpetuating any unconstitutional distinction between religious and nonreligious users.

There certainly may be other facts that I am not aware of, but it seems to me that the district is on awfully shaky ground. The United States Supreme Court, in one unanimous and two rather sharply divided opinions, has made clear that, if government establishes a limited purpose public forum (as Sun Prairie has done), it may not exclude religious uses that are otherwise within the scope of the forum. This, it has held, constitutes viewpoint discrimination and is unconstitutional.

The church’s use would seem to fall within the district’s very broad public use policy, and it is hard to see why waiving fees for all uses except religious ones would not constitute viewpoint discrimination.

Maybe the district can save itself by arguing that, while its discrimination against religious groups was impermissible, it can justify charging the church because it ran afoul of another district policy prohibiting the waiver of fees for groups who discriminate in membership on the basis of religious affiliation or other prohibited criteria. It might argue that the fees are justified if the use is not open to the entire community.

The problem with that approach is that the church, while it admits that it discriminates on the basis of religious affiliation in accepting members (as do virtually all churches and religious groups), alleges that the meetings in question are open to all children.

In the unlikely event that you see Sun Prairie’s prospects in this case on the prediction markets, go short.