Bronx Household of Faith v. Community School Dist. No. 10

• Decision Date: 15 September 1997
• Docket Number: D,No. 10,No. 1669,10,1669
• Citation: 127 F.3d 207
• Parties: 121 Ed. Law Rep. 892 The BRONX HOUSEHOLD OF FAITH; Jack Roberts; Robert Hall, Plaintiffs-Appellants, v. COMMUNITY SCHOOL DISTRICT NO. 10; Charles Williams, in his official capacity as President of the Board of Education for Community School Board District; The Board of Education of the City of New York, Defendants-Appellees. ocket 96-9633.
• Court: U.S. Court of Appeals — Second Circuit

Page 207

127 F.3d 207

121 Ed. Law Rep. 892

The BRONX HOUSEHOLD OF FAITH; Jack Roberts; Robert Hall Plaintiffs-Appellants, v. COMMUNITY SCHOOL DISTRICT NO. 10; Charles Williams, in his official capacity as President of the Board of Education for Community School Board District No. 10; The Board of Education of the City of New York, Defendants-Appellees.

No. 1669, Docket 96-9633.

United States Court of Appeals Second Circuit.

Argued May 30, 1997.

Decided Sept. 15, 1997.

Jordan W. Lorence, Fairfax, VA (Joseph P. Infranco, Commack, NY, of counsel), for Plaintiffs-Appellants.

Stuart D. Smith, Assistant Corporation Counsel of the City of New York, New York City (Paul A. Crotty, Corporation Counsel, Barry P. Schwartz, Assistant Corporation Counsel, New York City, of counsel), for Defendants-Appellees.

(Marvin E. Frankel, Jeffrey S. Trachtman, Eric A. Tirschwell, Kramer, Levin, Naftalis, & Frankel, New York, NY, of counsel), for Amicus Curiae National Committee for Public Education and Religious Liberty.

(Jay Worona, General Counsel, Louis Grumet, Executive Director, New York State School Boards Association, Inc., Albany, NY, of counsel), for Amicus Curiae New York State School Boards Association, Inc.

(Steven T. McFarland, Kimberlee Wood Colby, Samuel B. Casey, Center for Law and Religious Freedom, Christian Legal Society, Annandale, VA, of counsel), for Amici Curiae Christian Legal Society, Christian Life Commission of the Southern Baptist Convention, Evangelical Lutheran Church in America, Family Research Council, Focus on the Family, and National Association of Evangelicals.

Before: VAN GRAAFEILAND, MINER and CABRANES, Circuit Judges.

MINER, Circuit Judge:

Plaintiffs-appellants The Bronx Household of Faith (the "Church"), an evangelical Christian church, and Jack Roberts and Robert Hall, its pastors, appeal from a summary judgment entered in the United States District Court for the Southern District of New York (Preska, J.) in favor of defendants-appellees Community School District No. 10 ("District # 10"), Charles Williams, President of the Board of Education of District # 10, and the Board of Education for the City of New York. The action was brought to challenge the refusal of defendants to permit the use of the gymnasium-auditorium of a District # 10 public school, the Anne Cross Mersereau Middle School ("M.S. 206B"), by the Church for weekly religious worship services. Originally filed in the Supreme Court of the State of New York, Bronx County, the complaint in the action set forth various claims pleaded under the provisions of 42 U.S.C. § 1983 and New York's declaratory judgment statute, N.Y. C.P.L.R. § 3001 (McKinney 1991): violation of the Free Speech, Free Exercise of Religion and Establishment of Religion Clauses of the First Amendment; violation of the Equal Protection Clause of the Fourteenth Amendment; and violation of the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.

District # 10 removed the action to the Southern District, where both sides moved for summary judgment. In granting summary judgment to the defendants, the district court rejected the First Amendment Free Speech claim after first determining that the Board of Education had created a limited public forum; that the restrictions imposed on the use of the forum were reasonably related to matters of legitimate government concern; and that the concern was to "preserv[e] and prioritiz[e] access to the middle school primarily for educational purposes and, secondarily, for nonexclusive public and community activities." The court dismissed the remaining claims without analysis. On appeal, the appellants advanced the same arguments that they advanced before the district court. We affirm the dismissal of the Free Speech claim but disagree with the district court's analysis of "non-exclusive use." We also reject the claims unaddressed by the district court.

BACKGROUND

The use of school property for the purposes of religious worship is not among the uses designated by the New York Legislature for public schoolhouses and school grounds in New York State. However, New York Education Law does permit local school districts to adopt regulations permitting the use of such property for a great number of Pursuant to § 414, the New York City Board of Education has established a written policy governing the use of school buildings and school grounds under its jurisdiction. The policy is entitled "Standard Operating Procedures: Topic 5: Regulations Governing The Extended Use of School Facilities" ("SOP"). The SOP provides that the primary use of school premises is for Board of Education activities, and that the next preference will be given to community, youth and adult group activities. The SOP then specifies the following additional categories of permitted uses for school premises in the City of New York:

other purposes: educational instruction; public libraries; social, civic and recreational meetings and entertainments, and other community welfare uses, provided such uses are "non-exclusive and open to the general public"; meetings where admissions fees are charged, if the fees are expended for charitable or educational uses except for the uses of religious sects or certain exclusive societies; polling places; civic forums and community centers; classes for instruction of mentally retarded minors; recreation, physical training and athletics; child care services when school is not in session; and "graduation exercises held by not-for-profit elementary and secondary schools, provided that no religious service is performed." N.Y. Educ. Law § 414 (McKinney 1988 & Supp.1997).

5.6.1 For the purpose of instruction in any branch of education, learning or the arts; examinations; graduations.

5.6.2 For holding social, civic and recreational meetings and entertainments, and other uses pertaining to the welfare of the community; but such uses shall be non-exclusive and open to the general public.

5.6.3 For polling places for holding primaries, elections and special elections for the registration of voters; and for holding political meetings where representatives of different viewpoints may be heard; but no meetings sponsored by political organizations shall be permitted unless expressly authorized by a vote of the Board of Education.

5.6.4 For civic forums and community centers in accordance with applicable law.

5.6.5 For recreation, physical training and athletics, including competitive athletic contests of children attending nonpublic, nonprofit schools.

Most pertinent to the appeal before us are the provisions of SOP 5.9:

No outside organization or group may be allowed to conduct religious services or religious instruction on school premises after school. However, the use of school premises by outside organizations or groups after school for the purposes of discussing religious material or material which contains a religious viewpoint or for distributing such material is permissible.

District # 10, a public school district in the Borough of Bronx, New York City, is subject to the jurisdiction of the New York City Board of Education. M.S. 206B is a middle school facility within District # 10, with students ranging in age from 9 through 12 in grades 5 through 7. The parties agree that the use of District # 10 property is governed by the SOP and that the following organizations were permitted to use District # 10 facilities for the following purposes during the 1994-95 school year: ACAP, Inc., for a program of training and drill exercises for young people between the ages of 10 and 21; Alliance for Education, for tutoring students ages 9-12 in math and English; Boy Scouts, for training of adolescent boys in various skills, including camping and first aid; Bronx School of Music, a private school, for a concert performed by its students; Bronx YMCA, for an after-school program to tutor students ages 7-13 in math, reading and English; Bronx Youth Service, for an after-school study center tutoring students ages 7-13 in math and English; Crotona Coalition, for workshops for students on subjects such as drugs and AIDS; Edgemont Day Care, for a first aid and CPR course for its staff workers; Girl Scouts, for training girls in skills and character, including instruction in crafts, reading and other matters; Grace Lutheran Church, for a program on Black History On one occasion in 1994 and on another occasion in 1995, the Church rented the M.S. 206B building for programs of sports and games. The Church also rented the building once in 1995 for a banquet. However, the request by the Church to rent the gymnasium at M.S. 206B "for the purpose of conducting church worship services" each Sunday was denied. In his letter to Frank Pagliuca, a District # 10 official, seeking approval for the request, Pastor Hall noted that the services would include "hymn singing, communion, Bible reading, Bible preaching and teaching." After permission was denied by Mr. Pagliuca on the basis of the SOP provision prohibiting the after-school use of school facilities by outside organizations for religious services or instruction, Pastor Hall wrote to District # 10 Superintendent Irma Zardoya. He advised Superintendent Zardoya that the Church "is a Christian church of the historic Biblical persuasion," that use of the M.S. 206B facility was necessary because of overcrowding in the Church's present meeting location and that SOP 5.9 was unconstitutional. He concluded his letter by asking that his request for use of the school facilities be reconsidered. The permit application again was denied, and the action giving rise to this appeal ensued.

Month; Greek Orthodox Community of Riverdale, for an afternoon school to teach young people the Greek language and history; Kingsbridge Heights, for an after-school program for students, including supervised homework assistance and instruction in dance and computer classes; Mosholu Community, for a school program for...