Bronx Household of Faith v. Bd. of Educ. New York

• Decision Date: 16 November 2005
• Docket Number: No. 01 Civ. 8598(LAP).,01 Civ. 8598(LAP).
• Parties: The BRONX HOUSEHOLD OF FAITH, Robert Hall, and Jack Roberts, Plaintiffs, v. BOARD OF EDUCATION OF THE CITY OF NEW YORK and Community School District No. 10, Defendants.
• Court: U.S. District Court — Southern District of New York

400 F.Supp.2d 581

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

No. 01 Civ. 8598(LAP).

United States District Court, S.D. New York.

November 16, 2005.

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Benjamin W. Bull, Jordan W. Lorence, Alliance Defense Fund Law Center, Scottsdale, AZ, Joseph P. Infranco, Migliore & Infranco, P.C., Commack, NY, Rena Marie Lindevaldsen, Liberty Counsel, Longwood, FL, for Plaintiffs.

Lisa Fleming Grumet, New York City Law Department, New York, NY, for Defendants.

OPINION

PRESKA, District Judge.

INTRODUCTION

The liberty afforded by the First Amendment of the Bill of Rights to pursue religious expression free of government molestation was presciently observed by the Framers of the Constitution to be among the most divisive and factious to imperil societal harmony. See The Federalist No. 10, at 41-42 (James Madison) (Terence Ball ed., 2003) ("A zeal for different opinions concerning religion ... ha[s] ... divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to cooperate for their common good."); U.S. Const. amends. I, XIV. In fact, this inherent tension recently was evidenced by the Supreme Court's seemingly divergent rulings regarding public display of the Ten Commandments. McCreary County, Ky. v. ACLU of Ky., ___ U.S. ___, 125 S.Ct. 2722, 2733 n. 10, 162 L.Ed.2d 729 (2005) (prohibiting display of the Ten Commandments in county courthouses and noting that "Establishment Clause doctrine lacks the comfort of categorical absolutes"); Van Orden v. Perry, ___ U.S. ___, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005) (permitting display of the Ten Commandments in public space outside the Texas State Capitol).

Thus, it is perhaps not surprising that the Supreme Court's jurisprudence has evolved throughout our history from sometimes unabashed support of religion, see, e.g., Church of the Holy Trinity v. United States, 143 U.S. 457, 458, 471, 12 S.Ct. 511, 36 L.Ed. 226 (1892) (holding that a statute making it unlawful for any person "in any manner whatsoever, to prepay the transportation" or otherwise import an alien "to perform labor or service of any kind in the United States" could not have been intended to apply to a church's contracting for a pastor from England: "If we pass beyond these [historical] matters to a view of American life as expressed by its laws, its business, its customs and its society, we find everywhere a clear recognition of the same truth ... that this is a Christian nation."), toward a requirement of neutrality toward religion, see, e.g., Everson v. Bd. of Educ. of the Twp. of Ewing, 330 U.S. 1, 18, 67 S.Ct. 504, 91 L.Ed. 711 (1947) (permitting government funding for children's transportation to school, both public schools and religious schools: "Th[e First] Amendment requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions than it is to favor them.") and Agostini v. Felton, 521 U.S. 203, 231, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (reversing its earlier decision and finding no Establishment Clause violation in a federally funded program providing remedial instruction to children on a neutral basis: "[W]here the aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis ... the aid is less likely to have the effect of advancing religion."). It is that requirement of neutrality that prescribes the outcome in this case.

The Bronx Household of Faith, Robert Hall, and Jack Roberts ("Plaintiffs") brought this action against the Board of Education of the City of New York (the "Board") and Community School District No. 10 (the "School District," collectively, "Defendants"), alleging that Defendants' refusal to rent space in a New York City public middle school to the Bronx Household of Faith (the "Church"), a Christian church, for Sunday morning meetings that include worship violated the First Amendment, the Equal Protection Clause, and Sections 3, 8, and 11 of Article I of the New York Constitution. Plaintiffs and Defendants now cross-move for summary judgment. For the reasons set forth below, Plaintiffs' motion for summary judgment is granted, and Defendants' motion is denied.

BACKGROUND

The factual and procedural history of this action is set forth in detail in my June 26, 2002 Opinion granting Plaintiffs' motion for a preliminary injunction. 226 F.Supp.2d 401 (S.D.N.Y.2002) ("Bronx II"). Accordingly, only those facts relevant to the instant motions are set forth below.

In September 1994, the School District denied the request of the Church to rent space in Public School M.S. 206B, Anne Cross Merseau Middle School ("M.S. 206B" or the "School") for Sunday morning meetings that include religious worship. The denial was based on the Board's Standard Operating Procedure § 5.9 (1993) ("Former SOP § 5.9") and New York Education Law Section 414 (McKinney 2000), both of which prohibited rental of school property for the purpose of religious worship. In 1995, Plaintiffs brought an action in this Court challenging the School District's denial on constitutional grounds. See Bronx Household of Faith v. Cmty. Sch. Dist. No. 10, No. 95 Civ. 5501(LAP), 1996 WL 700915 (S.D.N.Y. Dec.5, 1996). I found that the School District had created a limited public forum and that its regulations were reasonable and related to a legitimate government interest. Thus, I denied Plaintiffs' motion for summary judgment and granted Defendants' cross-motion for summary judgment. In 1997, the Court of Appeals affirmed the judgment, 127 F.3d 207 (2d Cir.1997) ("Bronx I,") and in 1998, the Supreme Court denied certiorari. 523 U.S. 1074, 118 S.Ct. 1517, 140 L.Ed.2d 670 (1998).

Employing reasoning similar to its reasoning in Bronx I, the Court of Appeals affirmed the District Court's grant of summary judgment in favor of the defendant school district in The Good News Club v. Milford Cent. Sch., 202 F.3d 502 (2d Cir. 2000). The Good News Club is "a community-based Christian youth organization" that sought to use Milford Central School facilities for after-school meetings of children involving "`singing songs, hearing Bible lesson[s], and memorizing scripture.'" Id. at 504, 507. The majority found that the Good News Club is "focused on teaching children how to cultivate their relationship with God through Jesus Christ[,]" a pursuit that is "quintessentially religious" "under even the most restrictive and archaic definitions of religion." Id. at 510. Thus, the Court concluded, the Milford School District properly excluded the Good News Club on the basis of "content, not viewpoint." Id. at 511.

In a dissenting opinion, Judge Jacobs faulted the majority for distinguishing between groups that teach secular morality and those that teach morality that stems from religious beliefs. "The fallacy of this distinction is that it treats morality as a subject that is secular by nature, which of course it may be or not, depending on one's point of view." Id. at 515 (Jacobs, J., dissenting). Furthermore, Judge Jacobs observed, "[e]ven if one could not say whether the Club's message conveyed religious content or religious viewpoints on otherwise-permissible content, we should err on the side of free speech. The concerns supporting free speech greatly outweigh those supporting regulation of the limited public forum." Id.

The Supreme Court granted certiorari, 531 U.S. 923, 121 S.Ct. 296, 148 L.Ed.2d 238 (2000), and reversed the decision of the Court of Appeals, 533 U.S. 98, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001). The majority accepted the parties' agreement that the school had created a limited public forum but disagreed with the Court of Appeals' characterization of the Good News Club's activities, particularly its characterization of religious activities as different from other activities in the school relating to the teaching of moral values. Id. at 106, 110-11, 121 S.Ct. 2093. The Court noted:

Despite our holdings in Lamb's Chapel [v. Center Moriches Union Free School Dist., 508 U.S. 384, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993)] and Rosenberger, the Court of Appeals, like Milford, believed that its characterization of the Club's activities as religious in nature warranted treating the Club's activities as different in kind from the other activities permitted by the school.

Id. at 110-11, 121 S.Ct. 2093 (citation omitted).

The Court went on to reject definitively the treating of "quintessentially religious" activities as different in kind from the teaching of character and morals from a particular viewpoint:

We disagree that something that is "quintessentially religious" or "decidedly religious in nature" cannot also be characterized properly as the teaching of morals and character development from a particular viewpoint. See 202 F.3d at 512 (Jacobs, J., dissenting) ("When the subject matter is morals and character, it is quixotic to attempt a distinction between religious viewpoints and religious subject matters"). What matters for purposes of the Free Speech Clause is that we can see no logical difference in kind between the invocation of Christianity by the Club and the invocation of teamwork, loyalty, or patriotism by other associations to provide a foundation for their lessons.

Id. at 111, 121 S.Ct. 2093.

The Court further disagreed with the Court of Appeals' implicit finding that "reliance on Christian principles taints moral and character instruction in a way that other foundations for thought or viewpoints do not." Id. Ultimately, the Court held that "Milford's exclusion of the Club from use of...