MANHATTAN (CN) – New York City public schools can block religious groups from using their facilities for after-hours worship services, the 2nd Circuit ruled Thursday in the 17-year-old dispute.
The ruling, which marks the fourth time the court has ruled on the case, vacates a permanent injunction issued by a federal judge in favor of a Christian church that first applied in 1994 to hold Sunday services at an elementary school in the Bronx.
Bronx Household of Faith has been holding regular Sunday services at P.S. 15 since obtaining an injunction in 2004, but the history of the case stretches back 10 years earlier.
The church and two of its pastors, Robert Hall and Jack Roberts, filed suit in 1994 when the New York City Board of Education rejected its application under a section of the board’s Standard Operating Procedure Manual that prohibits the use of school property for “religious services or religious instruction.”
Bronx Household of Faith explained in its application that its services would include singing, prayer, Biblical preaching and a “fellowship meal,” during which attendees “share one another’s joys and sorrows.”
In the original lawsuit, the church claimed viewpoint discrimination in violation of the Free Speech Clause of the First Amendment. Though the courts tossed that case, the church won a preliminary injunction to hold its services after the Supreme Court’s 2001 decision in Good News Club v. Milford Central School. That case involved a private Christian organization for children that was unconstitutionally barred from using the facilities of an upstate New York public school district to sing songs, read Bible lessons, memorize scripture and pray.
In an effort to distance itself from Milford’s unconstitutional regulations, the New York City school board revised its Standard Operating Procedure Manual. The new standard established in section 5.11 prohibited use of school property for “religious worship services, or otherwise using a school as a house of worship.”
By July 2007, the board adopted and published its new standard, then rejected Bronx Household of Faith on that basis. The District Court granted summary judgment in favor of the church and blocked regulation, but the appellate panel majority vacated this holding Thursday.
“The prohibition against using school facilities for the conduct of religious worship services bars a type of activity,” Judge Pierre Leval wrote for the majority. “It does not discriminate against any point of view. The conduct of religious worship services, which the rule excludes, is something quite different from free expression of a religious point of view, which the Board does not prohibit.”
Leval distinguishes the case at hand from other cases considered by the Supreme Court.
“[N]either the Supreme Court nor this court has considered the constitutionality of a policy that allows the regular use of public schools for religious worship services,” Leval wrote.
“In any event, the reasonableness of the Board’s concern to avoid creating a perception of endorsement resulting from regular Sunday conversion of schools into Christian churches, together with the absence of viewpoint-based discrimination, distinguishes this case from the Supreme Court’s precedents striking down prohibitions of the use of educational facilities or funds by religious groups,” the opinion also states. “All of those cases involved rules or policies which broadly suppressed religious viewpoints and which, in their particular applications, disfavored activities which had far less potential to convey the appearance of official endorsement of religion.
Holding worship services transforms the site into a church, at least temporarily, and schools have a valid concern in trying to avoid the appearance of endorsing religion, the majority added.
Bronx Household of Faith’s own relationship with P.S. 15 to date has provided ample evidence of schools’ concerns, the ruling states.
“Bronx Household has held its worship services at P.S. 15, and nowhere else, every Sunday since 2002,” Leval wrote. “Under the injunction, at least twenty-one other congregations have used a school building on Sundays as their regular place for worship services. During these Sunday services, the schools are dominated by church use. Church members post signs, distribute flyers, and proselytize outside the school buildings. In some schools, no other outside organizations use the space. Accordingly, on Sundays, some schools effectively become churches. As a result of this church domination of the space, both church congregants and members of the public identify the churches with the schools. The possibility of perceived endorsement is made particularly acute by the fact that P.S. 15 and other schools used by churches are attended by young and impressionable students, who might easily mistake the consequences of a neutral policy for endorsement.”
Muslim and Jewish faiths are also inadvertently excluded from school facilities because they would not normally seek to hold services on Sundays, which is when the school facilities are typically available for public use.
“This contributes to a perception of public schools as Christian churches, but not synagogues or mosques,” Leval wrote.
Judge Guido Calabresi, who joined fully in Leval’s opinion, also wrote separately to emphasize the “problem” presented by the board’s proscription against “religious worship.”
“The question of whether there is a category of nonreligious worship, or whether worship is inherently religious and thus ‘religious worship’ is redundant, is interesting and difficult, but we do not need to decide it in this case,” Calabresi wrote. “The majority opinion does not need to decide the issue because it concludes that there is no such thing as a nonreligious worship service.” (Emphasis in original.)
Judge John Walker wrote a 27-page dissenting opinion saying the majority’s holding contradicts Supreme Court precedent.
“In this case, Bronx Household’s worship services fit easily within the purposes of the Board’s broadly available forum and may not be the object of discrimination based upon the religious viewpoint expressed by the services’ participants,” Walker wrote. “The Board’s purported Establishment Clause concerns are insubstantial: they are not reasonable, much less a compelling reason for the Board to shut the door on Bronx Household’s protected speech.”
“I have no doubt that this case stirs deep feelings and carries implications far broader than the Board’s exclusion of Bronx Household’s ‘Christian worship services’ …,” he concluded later. “This case also presents important doctrinal considerations worthy of the Supreme Court’s attention. In the meantime, however, as a result of the majority’s decision that ‘religious worship services’ can be barred from the neutral limited public forum the Board created …, numerous religious groups that provide recognized benefits to the people and their communities, consistent with the forum’s purposes, will be denied access to otherwise available school space simply because their private speech is intertwined with their standard devotional practices and deeply-held religious beliefs. Others will be chilled.”
Leval also indicated that the Supreme Court may ultimately have the final say.
“This case is terra incognita,” Leval wrote. “The Supreme Court’s precedents provide no secure guidelines as to how it should be decided. The main lesson that can be derived from them is that they do not supply an answer to the case before us. Precedent provides no way of guessing how the Supreme Court will rule when it comes to consider facts comparable to these. By hunting and pecking through the dicta of various opinions, one can find snippets that arguably support a prediction either way. Judge Calabresi and I believe that the Board’s exclusion of Bronx Household’s conduct of worship services is viewpoint-neutral and justified by the Board’s reasonable concern that permitting use of school facilities for worship services would violate the Establishment Clause.