Bronx Household of Faith v. Board of Educ. of City of New York, No. 06-0725 (2d Cir. July 2, 2007)
The U.S. Court of Appeals for the Second Circuit has lifted a permanent injunction barring the City of New York Board of Education (NYCBOE) from enforcing its revised facilities use policy that prohibits outside groups from using school facilities for religious worship. Two of the judges disagreed as to whether the policy constituted impermissible viewpoint discrimination, while the third judge concluded the issue was not ripe for decision on the merits. Each of the judges issued separate opinions. Judge Calabresi in a concurring opinion stated that the policy had been adopted and that while the policy restricts the content of speech permitted on school property, it is viewpoint neutral. Judge Leval’s concurrence expressed no opinion as to the constitutional validity of the policy because he found it was unclear whether the policy had been adopted, and at any rate the plaintiff had yet to suffer an injury as a result of the policy’s enforcement. As a result, he concluded that the issue was not ripe for a decision on the merits and that the court had no jurisdiction. Judge Walker, in dissent, agreed with Judge Calabresi that the policy had been adopted and the plaintiff was threatened with imminent harm if it is enforced. He concluded that a decision on the merits should be made and if it was, he would find that the policy’s restrictions on worship constituted impermissible viewpoint discrimination.
Judge Calabresi and Judge Walker disagree about whether "worship" is a separate form of religious speech that could be subject to content based restrictions. Judge Calabresi stated that he would hold that the policy’s ban on religious worship is viewpoint neutral and contains only content-based restrictions which he would find "reasonable in light of the purposes of the limited public forum involved." Judge Walker, on the other hand, rejecting the notion that worship is a separate form of religious speech, concluded that the policy is not viewpoint neutral, and therefore, the ban on conducting worship services is unconstitutional. He pointed out that if NYCBOE is concerned about potential Establishment Clause problems resulting from a perception of endorsement, NYCBOE is "free to impose different reasonable time, place or manner restrictions."
Bronx Household of Faith v. Board of Educ. of City of New York, No. 06-0725 (2d Cir. July 2, 2007)
[Full opinion]
[Editor’s Note: The litigation over NYCBOE’s prohibition on use of school facilities for religious services and worship is in its third round. After the Second Circuit upheld NYCBOE’s policy denying outside groups access to schools for purposes of conducting religious services in Bronx Household I, the U.S. Supreme Court in Good News Club v. Milford Central School, 533 U.S. 98 (2001), ruled that speech discussing otherwise permissible subjects cannot be excluded from a limited public forum because the subject is discussed from a religious viewpoint. When NYCBOE again denied a request for use of school facilities for religious services, a second suit was filed. When the new suit reached the Second Circuit, it concluded that it was bound by the Supreme Court's holding in Good News. As a result, it found there was no meaningful difference between "the teaching of morals and character development from a [religious] viewpoint" at issue in Good News and the religious worship at issue in Bronx Household II. NYCBOE then revised its policy to differentiate between speech instructing on secular subjects from a religious perspective, such as the speech at issue in Good News, and the type of speech involved in religious services and worship. A new suit followed and the federal district court ruled that NYCBOE’s refusal to allow an outside group to conduct religious and worship in school facilities violated the group’s free speech rights. To view a summary of the most recent district court ruling and a link to additional background on the litigation, see below.]
[NSBA School Law pages on Bronx Household of Faith v. Board of Educ. of City of New York]