Joy S. Baskin

IT’S 5:30 A.M. The pre-dawn sky is deep purple. The streets are quiet. But the high school track is buzzing as a hearty group of school employees, parents and neighbors gather for morning boot camp. They run laps, do pushups and toss around medicine balls while a private fitness instructor chirps instructions.

Is all that coordinated exercise healthy for the school district? What if someone gets hurt? Does the instructor have permission to teach on school grounds?

»Unless state law says otherwise, school districts are not obligated to allow nonschool use. According to the U.S. Supreme Court, a school district, through its board, has the right to control use of its own property.

»Citizens expect access nonetheless. School facilities often are the best in town, and tax dollars paid for them. School districts often permit off-hours use of outdoor facilities, such as playgrounds and running tracks, as well as indoor gyms, libraries and class-rooms.

»Consider liability. Any time there are people on your property, you are at risk. But most districts enjoy some protection through sovereign immunity, which varies by state. Plus, you can take steps to limit liability.
 For outdoor use, post signs about hours and rules (such as smoking and skateboarding prohibitions). Postings should indicate violators will be considered trespassers.

For organized use (such as a basketball league or boot camp), require groups to complete an agreement with the district that clarifies the district does not sponsor the activity, and participation (including by employees) is strictly optional. Clarify that the group takes legal responsibility for the activity and commits to follow district rules.

Consider having participants sign in to acknowledge the district is not responsible for nonschool use. Disclaimers are not perfect — sometimes lawyers and insurance companies argue around them — but at least they put the public on notice that the district does not claim responsibility for the activity.

»An open-door policy has First Amendment implications. Once a school district has chosen by policy or practice to open its doors, the First Amendment limits the district’s ability to deny access to a community group based solely on its viewpoint. If a district knowingly permits similar uses by other groups, the district may have opened a limited public forum. Limits on expression — called “time, place and manner” restrictions — must be viewpoint-neutral and reasonable in light of the forum’s purpose.

»Policy is key! Establish reasonable, viewpoint-neutral time, place and manner restrictions restrictions in advance. Clarify when and where nonschool use is permitted. Consider limits, such as requiring groups to seek access annually to prevent groups from monopolizing facilities. Decide whether to permit commercial uses or use by political campaigns. Talk with your school attorney about adding conditions — such as requiring groups to show proof of insurance or rejecting uses that would require more security.

»Charging a fee. Unless state law says otherwise, you may set a reasonable rate to cover increased maintenance, utilities, security or staff time. If you charge one group, charge all similar groups the same rate. To make exceptions (for the PTA or a scout group), involve your attorney in writing a reasonable, viewpoint-neutral fee schedule.

»Don’t give up control. School officials may not dedicate school property to community use in a way that interferes with the primary educational purpose of the facilities. Courts have declared void long-term leases of school athletic facilities to private groups. A lease may not divest a district of its exclusive right to manage and control school property.

»Safety first. In a lease or use agreement, address how to handle visitor protocols and whether you require the group to do back-ground checks on its personnel. Incorporate off-hours use into your campus emergency and safety planning and offer training to visiting groups on your safety protocols.

 JOY BASKIN is director of legal services with the Texas Association of School Boards in Austin, Texas. E-mail: joy.baskin@tasb.org