Bronx Household of Faith v. Board of Educ., Ny

• Decision Date: 02 July 2007
• Docket Number: Docket No. 06-0725-cv.
• Citation: 492 F.3d 89
• Parties: The BRONX HOUSEHOLD OF FAITH, Robert Hall, and Jack Roberts, Plaintiffs-Appellees, v. BOARD OF EDUCATION OF the CITY OF NEW YORK and Community School District No. 10, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

492 F.3d 89

The BRONX HOUSEHOLD OF FAITH, Robert Hall, and Jack Roberts, Plaintiffs-Appellees, v. BOARD OF EDUCATION OF the CITY OF NEW YORK and Community School District No. 10, Defendants-Appellants.

Docket No. 06-0725-cv.

United States Court of Appeals, Second Circuit.

Argued: September 28, 2006.

Decided: July 2, 2007.

David A. Cortman, Alliance Defense Fund, Lawrenceville, GA (Jordan W. Lorence, Benjamin W. Bull, and Joseph P. Infranco, Alliance Defense Fund, Scottsdale, AZ, on the brief), for Plaintiffs-Appellees.

Jane L. Gordon, Senior Counsel, Corporation Counsel of the City of New York (Michael A. Cardozo, Corporation Counsel, Edward F.X. Hart, Lisa Grumet, and Janice Casey Silverberg, on the brief), New York, NY, for Defendants-Appellants.

David White, Attorney, United States Department of Justice, Civil Rights Division, Appellate Section (Wan J. Kim, Assistant Attorney General, Dennis J. Dimsey and Eric W. Treene, Attorneys, Washington, DC, Michael J. Garcia, United States Attorney for the Southern District of New York, David J. Kennedy and Andrew W. Schilling, Assistant United States Attorneys, New York, NY, on the brief), Washington, DC, for Amicus Curiae United States of America.

Mitchell A. Karlan (Aric H. Wu, Marci R. Etter, and Farrah L. Pepper, Gibson, Dunn & Crutcher, LLP, Carol Nelkin, Jeffrey P. Sinensky, and Kara H. Stein, the American Jewish Committee, on the brief), Gibson, Dunn & Crutcher, LLP, New York, NY, for Amicus Curiae the American Jewish Committee.

Anthony J. Costantini, the Committee on Education and the Law, Association of the Bar of the City of New York (Jonathan R. Bell, Rosemary Halligan, and Laura L. Himelstein, on the brief), New York, NY, for Amicus Curiae Committee on Education and the Law, Association of the Bar of the City of New York.

Before: WALKER, LEVAL, and CALABRESI, Circuit Judges.

Concurring opinions by Judges CALABRESI and LEVAL, as well as a dissenting opinion by Judge WALKER, follow.

PER CURIAM:

The Bronx Household of Faith, a Christian church, has applied to use New York City school facilities for Sunday worship services. In 2001, the Board of Education of the City of New York denied Bronx Household's application, relying on Standard Operating Procedure Manual (SOP) § 5.11, its rule then in effect governing the use of school facilities by outside groups for "social, civic, [or] recreational meetings . . . and other uses pertaining to the welfare of the community." New York Educ. L. § 414(1)(c). The District Court for the Southern District of New York (Loretta A. Preska, Judge) first preliminarily enjoined the City's enforcement of SOP § 5.11, concluding that the City could not exclude Bronx Household. This court affirmed the preliminary injunction. The district court then entered a permanent injunction barring the City from enforcing a revision of SOP § 5.11. ("Revised SOP § 5.11"). (Judges Walker and Calabresi believe the revision to be the current version of SOP § 5.11, while Judge Leval questions whether the revision has been formally adopted.)¹

We hereby vacate the permanent injunction, although we reach that conclusion in rather circuitous fashion. Judge Calabresi would hold that this dispute is ripe for adjudication and would vacate the injunction because he concludes that Revised SOP § 5.11, while a restriction on the content of speech permitted on school property, is viewpoint-neutral. Judge Walker agrees that the dispute is ripe for adjudication but would affirm the injunction because he concludes that Revised SOP § 5.11 is viewpoint-discriminatory. Judge Leval expresses no opinion on the merits, but votes to vacate the injunction because he concludes that the dispute is not ripe for adjudication.

Our disparate views of this case leave us without a rationale to which a majority of the court agrees. While two judges who disagree on the merits believe the dispute is ripe for adjudication, the court cannot decide the merits of the case without the vote of the third judge, who disagrees as to ripeness. Judge Leval agrees that the dispute over Revised SOP § 5.11 would indisputably become ripe if the City were to deny Bronx Household permission to use school facilities in reliance on the terms of that rule.²

In vacating the judgment, we remand the action to the district court for all purposes. We have every reason to believe that both parties hope to bring this protracted litigation to an end by obtaining a decision on the merits. The City is free to adopt Revised SOP § 5.11 (if it has not already done so), and then require that Bronx Household apply to use school buildings pursuant to that rule. In the event Bronx Household does so, and the City denies the application, Bronx Household may seek review of that denial in the district court on an expedited basis. Either party's appeal from any judgment of the district court will be referred to this panel. If the parties desire a speedy resolution of their dispute, we believe all this can be accomplished with little delay; indeed, we direct the parties to advise us should they file another appeal and invite the parties, should they wish to, otherwise to apprise us of subsequent developments, in either case by directing a letter to the Clerk of Court.

The permanent injunction of the District Court for the Southern District of New York is VACATED. Concurring opinions by Judges Calabresi and Leval, as well as a dissenting opinion by Judge Walker, follow.

CALABRESI, Circuit Judge:

Is worship merely the religious analogue of ceremonies, rituals, and instruction, or is worship a unique category of protected expression? I believe the answer to that question determines the result in this case brought under the Free Speech Clause of the First Amendment.

The Bronx Household of Faith ("Bronx Household"), a Christian church, along with its pastors Robert Hall and Jack Roberts, attacked as viewpoint discrimination the refusal of the Board of Education of the City of New York ("the Board") and Community School District No. 10 ("the School District") to permit the church to use school facilities for Sunday worship services. The district court (Preska, J.) granted summary judgment in favor of the plaintiffs and permanently enjoined defendants from enforcing their policy that excludes worship services from school facilities. I vote to vacate the court's determination that, as a matter of law, defendants' exclusion of worship services from school facilities is impermissible viewpoint discrimination, and remand the case to the district court for further developments in light of this and the other opinions of this panel filed today.

I. BACKGROUND

The relevant facts are not in dispute. The conflict between 25 these parties began in 1994, when the School District denied plaintiffs' request to rent space in the Anne Cross Mersereau Middle School ("M.S. 206B") for Sunday morning meetings. Bronx Household's weekly meetings would have included the "singing of Christian hymns and songs, prayer, fellowship with other church members and Biblical preaching and teaching, communion, sharing of testimonies" and a "fellowship meal" that allows attendees to talk and provide "mutual help and comfort to" one another. (First Affidavit of Robert Hall at 1).

Under New York State law, local school districts may permit their facilities to be used during after-school hours for a broad range of purposes, including "social, civic and recreational meetings and entertainments, and other uses pertaining to the welfare of the community; but such meetings, entertainment and uses shall be nonexclusive and shall be open to the general public." N.Y. Education Code § 414(1)(c) (McKinney 2006). The statute authorizes the "trustees or board of education of each district" to allow access to school facilities for any use it chooses within this range of purposes. § 414(1). District No. 10, a public school district in the Bronx, is subject to the jurisdiction of the New York City Board of Education.

In 1994, the School District enforced the Board's Standard Operating Procedures Manual (SOP) which, at the time, included a provision barring outside organizations from conducting "religious services or religious instruction on school premises after school," though it allowed groups to "discuss[] religious material or material which contains a religious viewpoint." SOP § 5.9. Plaintiffs brought an action against defendants to compel the School District to grant a permit for Bronx Household's weekly use of the school facilities, but the district court granted defendants' motion for summary judgment, and dismissed the suit. Bronx Household of Faith v. Community Sch. Dist. No. 10, No. 95 Civ. 5501, 1996 WL 700915 (S.D.N.Y. Dec. 5, 1996). We affirmed. 127 F.3d 207 (2d Cir.1997), cert. denied, 523 U.S. 1074, 118 S.Ct. 1517, 140 L.Ed.2d 670 (1998) [hereinafter Bronx Household I].

We subsequently applied our reasoning from Bronx Household I to another viewpoint discrimination challenge brought against the Milford School District by a private Christian organization for children (the Good News Club). We held that the Milford district could deny the Good News Club a permit to conduct religious instruction in school facilities because this amounted to "quintessentially religious" activity. Good News Club v. Milford Central Sch., 202 F.3d 502 (2d Cir.2000).

The Supreme Court, however, reversed our holding in that case. 533 U.S. 98, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001). The Court found that the Good News Club was seeking "to address a subject otherwise permitted [in the school], the teaching of morals and character, from a religious standpoint." 533 U.S. at 109, 121 S.Ct. 2093. The High Court did not dispute the validity of Justice Souter's description of the Club's activities as including elements of worship, from the opening and closing of meetings with prayer, to activities such as "the challenge," where already "saved" children would ask God for...