Deeper Life Christian Fellowship, Inc. v. Board of Educ. of City of New York

• Decision Date: 21 July 1988
• Docket Number: No. 1054,D,1054
• Citation: 852 F.2d 676
• Parties: 48 Ed. Law Rep. 117 DEEPER LIFE CHRISTIAN FELLOWSHIP, INC., Appellee, v. BOARD OF EDUCATION OF the CITY OF NEW YORK, Colleen Edmondson, and District 27 Community School Board, Appellants. Attorney General of the State of New York, Intervenor. ocket 87-9021.
• Court: U.S. Court of Appeals — Second Circuit

Page 676

852 F.2d 676

48 Ed. Law Rep. 117

DEEPER LIFE CHRISTIAN FELLOWSHIP, INC., Appellee, v. BOARD OF EDUCATION OF the CITY OF NEW YORK, Colleen Edmondson, and District 27 Community School Board Appellants Attorney General of the State of New York, Intervenor.

No. 1054, Docket 87-9021.

United States Court of Appeals Second Circuit.

Argued May 3, 1988.

Decided July 21, 1988.

Edward F.X. Hart (Peter L. Zimroth, Corp. Counsel of the City of New York, Leonard Koerner, of counsel), for appellant Board of Educ.

Kevin McGill, Clifton Budd Burke DeMaria, New York City (Carlyle M. Dunaway, Jr., Clifton Budd Burke & DeMaria, Robert K. Skolrood, Douglas W. Davis, Paul S. McConnell, The National Legal Foundation, Virginia Beach, Va., Curtis & Shain, Massapequa, N.Y., of counsel), for appellee Deeper Life Christian Fellowship, Inc.

Marion R. Buchbinder, Asst. Atty. Gen. (Robert Abrams, Atty. Gen. of N.Y., Lawrence S. Kahn, Deputy Sol. Gen., of counsel), for intervenor.

Stanley Geller, New York City, for amicus curiae Committee for Public Educ. and Religious Liberty.

Before LUMBARD, OAKES, and KEARSE, Circuit Judges.

OAKES, Circuit Judge:

This case presents a conflict between the free speech and establishment of religion clauses of the First Amendment. Appellee, Deeper Life Christian Fellowship, Inc. ("Deeper Life"), a New York religious corporation, argues that denying it the use of a public elementary school building during nonschool hours is unconstitutional content-based regulation of speech. Appellants, the New York City Board of Education and the local school board, on the other hand, argue that to permit the church access to the school premises would create an unconstitutional establishment of religion and would violate New York Education Law Sec. 414 (McKinney 1988). ¹ The question comes before us in the form of an appeal from a grant of a preliminary injunction requiring appellants to issue a use permit to Deeper Life pending further court order. Solely on the basis that the case presents a fair ground for litigation and that the balance of hardships favors appellee, we affirm.

BACKGROUND

Deeper Life, a nonprofit corporation organized under the laws of the state of New York, is a fundamentalist Christian church located in Richmond Hill, New York, within the public school district overseen by appellant District 27 Community School Board ("School Board"). When Deeper Life undertook renovations of its church headquarters, it applied to the School Board for and received a permit to use the district elementary school building, P.S. 60, from 8:00 a.m. until 5:00 p.m. on four consecutive Sundays beginning September 13, 1987. At the time of application Deeper The Monday following appellee's first use of the school property, Colman Genn, the Community Superintendent of District 27, allegedly received complaints from the Woodhaven Residents' Block Association about the use of the school for religious services and the number of illegally parked cars in the area. As a result of the complaints, an inquiry was begun which revealed that Deeper Life was using P.S. 60 to conduct religious worship, instruction, and fundraising. Appellant Board of Education of the City of New York ("Board of Education") concluded that these activities violated New York State Education Law Sec. 414 and especially subparagraph (d) thereof. ² When appellee applied for a renewal In response Deeper Life brought this action in the United States District Court for the Eastern District of New York alleging, inter alia, that the refusal of the School Board to renew the permit was unconstitutional because it was based upon Deeper Life's being a fundamentalist black church. Deeper Life asserted that the failure to renew the permit would cause irreparable injury and that the church would be unable to conduct its weekly Sunday meetings resulting in a decline in membership and contributions and, ultimately, default and foreclosure of the mortgage on the church's property. The district court granted a temporary restraining order directing the School Board to permit Deeper Life to use P.S. 60 for four Sundays beginning October 11, 1987. On November 2, 1987, the district court, Edward R. Korman, Judge, conducted a hearing on Deeper Life's motion for a preliminary injunction. The court, relying primarily on the Supreme Court's decision in Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981), granted the motion, compelling the School Board to issue Deeper Life a permit to use P.S. 60 pending further court order.

Life advised the School Board that it would need to use the school for an additional six to eight months after the expiration of the first permit. Flyers were distributed in the surrounding community advertising that Deeper Life was offering worship services, children's church services, and a Sunday school at P.S. 60 of its permit, Superintendent Genn denied the application, citing the impermissible use of the school for religious purposes.

DISCUSSION

In order to obtain a preliminary injunction an applicant must show "(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief." Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam).

We agree with the district court that appellee has demonstrated that irreparable harm would ensue from the refusal to renew its permit to use P.S. 60. As Judge Korman found, absent an injunction, Deeper Life would be without a place in which to conduct services for a substantial period of time. As the Supreme Court stated in Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976), "loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury."

In applying the second part of the analysis, we conclude that the district court reached the correct result, although we do not agree with its analysis. The district court believed its ruling was "compelled" by the Supreme Court's decision in Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981). As a result, it did not address intervenor New York State Attorney General's argument that New York Education Law Sec. 414 creates a limited public forum only, and that the State constitutionally may exclude appellee's religious worship, instruction, or fundraising activities.

Widmar, however, does not control the result here. As the Supreme Court pointed out in a later case, in Widmar it had "noted that a university campus, at least as to its students, possesses many of the characteristics of a traditional public forum," Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 803, 105 S.Ct. 3439, 3449, 87 L.Ed.2d 567 (1985), thereby subjecting attempts at regulating use of the property to the most exacting constitutional standards as to the forum's intended beneficiaries. While the citizenry residing within a school district may be the intended users of the forum at issue here, public elementary schools are not, as to the general community, traditional public fora. See Brandon v. Board of Educ., 635 F.2d 971, 980 (2d Cir.1980), cert. denied, 454 U.S. 1123, 102 S.Ct. 970, 71 L.Ed.2d 109 (1981).

Under the limited public forum analysis, property remains a nonpublic forum as to all unspecified uses, Cornelius, 473 U.S. at 802, 105 S.Ct. at 3448; Perry Educ. Ass'n v. Perry Local Educs.' Ass'n, 460 U.S. 37, 48, 103 S.Ct. 948, 956, 74 L.Ed.2d 794 (1983), and exclusion of uses--even if based upon subject matter or the speaker's identity--need only be reasonable and viewpoint-neutral to pass constitutional muster. See Board of Airport Comm'rs v. Jews for Jesus, Inc., --- U.S. ----, 107 S.Ct. 2568, 2571, 96 L.Ed.2d 500 (1987); Cornelius, 473 U.S. at 806, 105 S.Ct. at 3451. See also Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976) (political candidates can be excluded from speaking at a military reservation even though other members of the public are permitted to speak on other subjects); Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974) (city can exclude political advertising from advertising space in city's transit system); Calash v. City of Bridgeport, 788 F.2d 80, 82 (2d Cir.1986) (for-profit businesses can be excluded from a municipal auditorium available for use only by charitable and nonprofit organizations). For appellee to succeed in the district court, therefore, it must establish that New York State's access policy has created a limited public forum intended to benefit religious organizations such as Deeper Life and encompassing the purposes for which the organization seeks to use the school property. See Calash, 788 F.2d at 84 (state may create a public forum "for use only by certain speakers or for discussion of certain topics").

"[C]ritical to a finding that [the State] has created a limited public forum," id. at at 83, is a determination of the State's intent in establishing the forum. By state law, public school buildings may be used by the general public only for the nine purposes enumerated in New York Education Law Sec. 414. The provision of religious worship, instruction, and fundraising is not among these purposes. See Trietley v. Board of Educ., 65 A.D.2d 1, 5-6, 409 N.Y.S.2d 912, 915 (4th Dep't 1978). Moreover, the regulations governing the use of school premises expressly exclude fundraising for, teaching the tenets of, or distributing material promoting a particular religion. Board of Education of the City of New York, Permit Processing Procedure, Fee Schedules, and Rules and Regulations Governing the Extended Use of School Buildings, Special Circular No. 4 (1978-79), Secs. 5.6(c), 5.20, 5.27. Such regulations are also indicative of the State's...