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  • Second Circuit Rules New York City’s Prohibition of Religious Services in School Facilities Constitutional

    Recently, in Bronx Household of Faith v. Board of Education of the City of New York[1], the Court of Appeals for the Second Circuit (the “Second Circuit”), in a 2-1 decision, reversed the lower court’s decision and ruled that the New York City Board of Education’s policy, which prohibits community groups from organizing and holding religious services at its facilities, is constitutional and does not violate the Free Exercise Clause or the Establishment Clause of the U.S. Constitution.

    The action began in 1994 when the Bronx Household of Faith (the “Church”) applied for a permit to use public school facilities on Sundays for Christian Worship Services.  That year, the New York City Board of Education (the “Board of Education”) denied the Church’s application.  The denial was initially based on the Board of Education’s Standard Operating Procedures and the New York Education Law, which prohibited public school facilities from being used for religious worship. The Board of Education’s Standard Operating Procedures were superseded in 2007 by the New York City Department of Education Chancellor Regulations. There are two specific Chancellor Regulations that were applicable to the action from 2007 through 2014, which were discussed in the Second Circuit’s recent decision. First, Regulation D-180 governs the extended use of school facilities outside of school hours for community groups and organizations and requires organizations to apply for a permit (issued by the Board) before utilizing public school facilities. Regulation D-180 is, however, subsidized so that no rent is charged for the use of the school facilities. Second, Reg. I.Q provides that permits shall not be granted for the purpose of holding religious worship services.

    The Church commenced this action, Bronx Household of Faith v. Board of Education of the City of New York, in the District Court for the Southern District of New York (the “Southern District”), claiming the Board of Education’s policy violates the Free Exercise Clause of the First Amendment insofar as it limits the Church’s ability to engage in religious activity. The Church also argued that the Board of Education, in denying its application to use the public school facilities, was in violation of the Establishment Clause because it was impermissibly entangling itself with religion.  Conversely, the Board defended its decision to deny the Church’s application on the grounds that if it would have extended the permit for religious services, it would have created the perception that the City was improperly supporting or endorsing religion.

    In 2012, the Southern District agreed with the Church and permanently enjoined the Board of Education from enforcing the policy explained herein. However, in April 2014, the Second Circuit reversed the injunction issued by the Southern District and concluded that the Board of Education’s policy does not violate the Free Exercise and Establishment Clauses of the First Amendment. The reasoning behind the Second Circuit’s decision is critically important insofar as it is binding on other school districts within the Second Circuit. School Boards must understand the reasons why this policy was held to be constitutional so that they do not find themselves in violation of First Amendment for similar, but distinguishable policies.

    The Second Circuit concluded the Board of Education’s prohibition was consistent with its constitutional duties for several reasons. First, the Second Circuit found the Board of Education had a bona fide and reasonable concern for the denial, in that allowing the free use of school facilities for religious worship would create a substantial risk of impermissible entanglement with religion in violation of the Establishment Clause. Also, there was no evidence that the Board of Education had an animus against religion generally or any religion that conducted worship specifically. In rejecting the Free Exercise claim the majority held, “[T]he Free Exercise Clause has never been understood to require government to finance a subject’s exercise of religion.”[2] Additionally, the rule prohibiting religious worship services did not exclude expression of a religious viewpoint; it is a content-based exclusion of a particular category of activity.[3] The decision does not interfere with the use of school property by school groups or community organizations for other religious purposes such as singing religious songs, reading bible lessons, or reciting scripture.

    In response to the Second Circuit’s recent decision, religious groups have already submitted a petition with the Second Circuit requesting a rehearing en banc. The petition claims, “the majority’s opinion conflicts with multiple decisions from the Supreme Court and sister circuits, and for those reasons, this Court should grant en banc review to correct the conflicts.” Although the United States Supreme Court previously denied certiorari in 2011, it may be naïve to believe this case has reached its final decision. School Boards should continue to closely monitor these hot button issues and be mindful of any district policies that may be incongruent with First Amendment rights.

    If you or your institution has any questions or concerns regarding education related issues, please email Cynthia A. Augello at caugello@cullenanddykman.com or call her at (516) 357-3753.

    A special thank you to Maria Ehlinger, a Summer Associate at Cullen and Dykman LLP, for her assistance with this blog post.

    [1]Bronx Household of Faith v. Bd. of Educ. of City of New York, 2014 WL 1316301 (2d Cir. Apr. 3, 2014).

    [2]Bronx Household of Faith v. Bd. of Educ. of City of New York, 2014 WL 1316301 (2d Cir. Apr. 3, 2014).

    [3]Id. at 9.