In December 2011, The New York Times reported on the end of a small evangelical Christian church’s 16-year legal battle to overturn a New York City ban on the use of public schools for religious worship services.

The final chapter in the longstanding legal crusade by the Bronx Household of Faith came when the U.S. Supreme Court declined to review a lower court decision backing the city’s ban. The Supreme Court’s action allowed the city to begin kicking churches out of the schools where many had worshipped for years.

It wasn’t really the end of that story, but that’s for another day.

Five thousand miles away in Honolulu, Mitch Kahle, founder of Hawaii Citizens for Separation of Church and State, read the Times story with interest.

“I wonder what’s happening here in Hawaii,” Kahle recalls thinking at the time.

That small question started Kahle and his partner, Holly Huber, on a year-long investigation culminating in 2,245-page report and an unusual and controversial lawsuit.

Kahle and Huber say they just want to make sure that churches are treated the same as everyone else, no better and no worse than any other organization or community group applying to use school facilities.

Their investigation, including review of thousands of pages of correspondence, emails, rental applications, payment records, and other documents, as well as boots-on-the-ground observations, found widespread use of public schools for religious purposes.

They found as many as 200 different churches using school facilities. At least 137 have been holding regular weekly worship services and other religious activities in the same school for a year or longer, with more than 50 regularly in the same school for over five years.

“One church has held services at the same elementary school uninterrupted for 28 years,” ever since the Department of Education adopted rules for such rentals, they reported.

Kahle and Huber have not challenged the right of churches to hold worship services in public schools. Instead, they have focused on whether the Hawaii Department of Education has collected all of the rental fees, utility costs, and other charges from churches that are required by state law and DOE rules.

Those charges, spelled out in the rules, include hourly fees for facilities ranging from auditoriums and gyms to classrooms and parking lots, plus utility charges and administrative costs.

The pair’s investigation found many churches filed applications which systematically understated the amount of time they would spend on school premises, and avoided paying higher fees for their actual hours of use.

At Farrington High School, for example, New Hope Oahu applied to use various facilities for a total of 7.5 hours or less per weekend, while actual use was for 24 hours or more per weekend over a period of years, according to the report, which was filed in court as an exhibit accompanying the lawsuit.

Kahle and Huber estimate the five largest churches owe at least $5.6 million in unpaid or underpaid rental fees, utility charges, and other costs for use of school premises over the past six years.

In March 2013, Kahle and Huber filed a “Qui Tam” lawsuit under Hawaii’s “false claims” law seeking to recover the “unpaid or underpaid” amounts owed to the state.

The law provides that anyone who knows of or discovers someone cheating the state out of money owed can act as whistleblowers and initiate legal action to recover the money for the state.

As spelled out in Chapter 661 of Hawaii Revised Statutes, Kahle and Huber’s lawsuit was filed under seal and remained confidential in order to allow the attorney general’s office to first consider whether to step in and handle the case itself. When the state decided not to join the case “at this time,” the case was unsealed and publicly disclosed, and can now move forward in civil court. If they are successful, they will be eligible to receive a portion of any money recovered.

And that could mean a big payday for the state as well as for the plaintiffs. The “false claims” law provides for damages amounting to three times the amount the state was shorted. For example, the estimated avoidance of $5.6 million in rental fees allegedly owed the state could lead to triple damages of $16.8 million, with 25-30 percent going to the plaintiffs along with reasonable attorneys fees and costs.

In a widely circulated video statement, Wayne Cordeiro, the founding pastor of the New Hope Christian Fellowship, accused the pair of an “ideological jihad against God loving families” and vowed to fight the lawsuit.

Attorney Jim Bickerton, who filed the case on behalf of Kahle and Huber, has a very different viewpoint.

“There’s no political or religious agenda other than to get the money that should have gone into the system,” Bickerton said Tuesday.

“The case is really very simple,” he said. “It’s about whether or not they accurately stated their days and hours of use of the schools on their application forms. If they used the schools at other times and dates, and those forms were false, they are required to pay for the times they didn’t disclose.”

The statute specifically provides that “no proof of specific intent to defraud is required.”

Further, Bickerton said: “It’s very important to understand that the state doesn’t make any money. The rates are set at exactly the state’s cost of opening the doors, keeping a janitor on hand, running the utilities, and accounting for the wear and tear.”

Although the lawsuit doesn’t raise any constitutional objections to continued religious use of schools as long as the state is properly paid, tricky First Amendment issues are unavoidably part of the legal terrain.

The First Amendment provides, in part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”

While the “free exercise” clause prohibits interference with religious liberties, and requires even-handed treatment of religious organizations, the “establishment” clause prohibits the government from unfairly promoting certain religious beliefs, or becoming overly entangled in religious affairs.

A 1986 state attorney general’s opinion on the subject warned that “the lengthy use of school facilities by some religious groups” could fail a key constitutional test.

The opinion quoted from a decision of the New Jersey Supreme Court, which found “truly prolonged use of school facilities by a congregation without evidence of immediate intent to construct or purchase its own building would be impermissible.” According to the AG opinion, the New Jersey court found “five years of continued use by a religious organization was near the outer limits of the reasonable time a religious group should take in finding proper accommodations.”

In other words, temporary use of schools by churches can pass constitutional muster, but using schools as permanent homes is too much.

The attorney general advised the DOE to ensure that use of schools by religious organizations is only temporary, and said religious groups that use school buildings “for more than a few years should be reminded that they cannot use the schools for their religious activities on a permanent basis.”

“Appropriate action should be taken to ensure that religious organizations do not abuse the system,” the opinion concluded.

Finally, it advised: “Periodic inquiries regarding the religious organization’s building program should be made to ensure that the use is not contemplated as permanent or more than temporary.”

Consistent with the 1986 attorney general’s opinion, the DOE for decades had a guideline restricting groups from using school facilities for more than five years, although it’s obvious from the record compiled by Kahle and Huber that this guideline was rarely if ever enforced.

But the 5-year rule was arbitrarily dropped from interim guidelines promulgated by Superintendent Kathryn Matayoshi on October 25, 2012.

Matayoshi’s action came months after the DOE began stonewalling the then-ongoing investigation into church use of schools, and just weeks after New Hope’s “executive pastor” wrote to Board of Education Chairman Don Horner requesting a reduction in rental fees and elimination of the 5-year lease limit.

Speaking of “entanglement,” it’s interesting to note that Horner, in addition to his many other titles and positions, also has the title “Pastor” at New Hope Diamond Head, where he participates in “a teaching ministry.”

This is a tale rich in documentary detail, heated religious rhetoric, bureaucratic stonewalling, political pressures, constitutional debates, power and money, and more.

Watching this lawsuit move forward is sure to be rewarding on many, many levels.

Read Ian Lind’s blog at iLind.net.