Rose Park and Rose Park Middle School are public property belonging to the taxpayers of Metro Nashville and intended to serve a diverse neighborhood and city.
The leasing of an operational public-school building to a private religious institution for a period of 30 to 50 years is nationally unprecedented and profoundly problematic. This would be the case even if the school building were not in active use by students, but the proposed Rose Park Middle School lease involves a private religious institution’s operation of a facility in active and routine use by MNPS students.
The proposed lease presented to the MNPS Board on August 25, 2020, (1) distinguishes between legal and illegal discrimination and (2) omitted criteria (sexual orientation, gender identity, and gender expression) included in other anti-discrimination statements:
This language seems to have been revised within the last week, but the problems that created it remain.
Religious Discrimination at Belmont University
Belmont University’s website openly asserts Belmont’s right to “discriminate on the basis of religion in order to fulfill its purposes.”
Christian religious affiliation is a criterion for employment at Belmont, whose online employment application requires that applicants respond to a “yes-no” question with reference to this criterion:
This question does not recognize or seek information concerning an applicant’s adherence to any other religion or system of belief.
A second question assumes that the applicant is a Christian:
Belmont employment applications include one or both of these questions. The second example above is from an application for a pooled set of office administrative positions.
Belmont’s faculty handbook requires “active involvement in a local church committed to the confession that Jesus Christ is Lord” as a condition for tenure.
Belmont’s employee handbook requires all employees to “uphold Jesus as the Christ and as the measure for all things.”
With reference to religious discrimination, it is important that decisions of the Board of Education regarding the proposed lease are informed by public education values, relevant law, considerations of precedent, and an awareness of Metro Nashville’s history with issues of discrimination related to Rose Park.
Public Education Values
The current terms of the proposed lease — in providing for the operation of an MNPS facility by a private, Christian, religiously exclusive institution — are disrespectful to the diversity values and commitments of public education.
They are also disrespectful to MNPS students from a variety of faith and non-faith backgrounds and to the diverse citizens and taxpayers of Metro Nashville who fund and otherwise support MNPS.
Many of these individuals make enormous contributions to the success of our public schools but are expressly excluded on the basis of religion from working at Belmont. Some have direct experience of Belmont’s discriminatory policies.
It is critical for Metro attorneys to review case law directly relevant to the proposed lease and to advise the MNPS Board regarding the significant potential for legal challenges if it is approved.
A federal court in Missouri, for example, found in 2017 that two school field trips to a recreational facility operated by a private religious institution (Victory Ministries and Sport Complex) represented an impermissible entanglement of the school district with this institution:
“Entangling school district operations, curriculum, activities or opportunities with those of a religious organization or religious belief set is not permitted. Certainly, occasional use of a facility owned by a religious entity for a school function may be permissible without being considered impermissible entanglement. Here, however, the frequency, consistency, and extent [emphasis added] of the relationship between the Joplin District and Victory goes well beyond occasional or incidental use and impermissibly entangles the Joplin District with religion.”
The federal court ordered the district to pay approximately $150,000 in related legal fees.
The proposed 30-to-50-year operation of an MNPS building by a private religious organization — including Christian-only office space — involves a relationship between MNPS and Belmont of far greater “frequency, consistency, and extent” than the relationship found to be impermissible in the Joplin School District case.
The success of a potential legal challenge on this basis or other case law is likely, and related financial costs are almost certain. These potential costs include not only legal expenses but, more significantly, the future of the invested real property if the terms of the MNPS-Belmont relationship are found to be impermissible.
Precedents for Metro and MNPS
In a contribution to the discussion at the MNPS Board meeting on August 11, Dr. Gentry observed correctly that the proposed lease was in some respects similar to leases of other MNPS property, including leases for the operation of charter schools.
To date, school property leases for the operation of charter schools, in Nashville and elsewhere, do not involve leases to private religious organizations.
The current terms of the proposed lease risk creating a precedent for this and for the operation of other MNPS facilities by private institutions that discriminate on the basis of religion.
Discrimination and the History of the Rose Park Lease
Belmont and its Rose Park lease played a critical role in the events that led to state legislation — the “Equal Access to Intrastate Commerce” act — nullifying a Metro Nashville non-discrimination ordinance with reference to sexual orientation and gender identity.
In 2010, the dismissal or resignation of Belmont soccer coach Lisa Howe led members of the Metro Council to file BL2010-823 seeking the repeal of the ordinance enacting Belmont’s Rose Park lease. Belmont immediately amended its by-laws to include non-discrimination provisions. Although President Bob Fisher stated at the time that he would put the employment of LGBT individuals “in the category of a hypothetical,” the policy change was sufficient for the withdrawal of the bill and its replacement with a broader ordinance anti-discrimination ordinance applying to all Metro contracts. Belmont board member Lee Beaman and others responded by successfully seeking state legislation to preempt this second Metro ordinance. Ms. Howe, along with a faculty sponsor of the Gay/Straight Alliance at Hume-Fogg and others, unsuccessfully challenged this statute in Lisa Howe et al. v. Haslam.
The decision of the U.S. Supreme Court in Bostock v. Clayton County has made the Tennessee statute unenforceable, and Ms. Howe’s story has again received national attention in the context of this historic decision. The Tennessee statute nevertheless limited Metro Nashville’s efforts to become a more equitable and inclusive city for almost a decade. This history demonstrates the larger risks for Metro Nashville in a public-private relationship where the mission, values, and policies of the private institution are not carefully examined prior to the approval of an agreement.