Bronx Household of Faith v. Board of Educ. of City

• Decision Date: 26 June 2002
• Docket Number: No. 01 Civ. 8598(LAP).,01 Civ. 8598(LAP).
• Citation: 226 F.Supp.2d 401
• Parties: THE BRONX HOUSEHOLD OF FAITH, Robert Hall and Jack Roberts, Plaintiffs, v. THE 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

Page 401

226 F.Supp.2d 401

THE BRONX HOUSEHOLD OF FAITH, Robert Hall and Jack Roberts, Plaintiffs, v. THE 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.

June 26, 2002.

Joseph P. Infranco, Migliore & Infranco, P.C., Commack, NY, Rena Marie Lindevaldsen, Esanu, Katsky, Korins & Siger, L.L.P., New York, NY, Benjamin W. Bull, Jordan W. Lorence, Alliance Defense Fund Law Center, Scottsdale, AZ, for Bronx Household of Faith, Robert Hall, Jack Roberts.

Lisa Grumet, Corp. Counsel of City of N.Y., Brooklyn, NY, for Board of Educ. of City of N.Y., Community School Dist. No. 10.

OPINION

PRESKA, District Judge.

Plaintiffs The Bronx Household of Faith, Robert Hall and Jack Roberts bring this action against defendants Board of Education of the City of New York and Community School District No. 10 ("School District") alleging violations of the Free Exercise, Free Speech, Free Assembly and Establishment Clauses of the First Amendment, the Equal Protection Clause and Sections 3, 8 and 11 of Article I of the New York Constitution. Plaintiffs move for a preliminary injunction to prevent defendants from denying plaintiffs' application to rent space in Public School M.S. 206B, Anne Cross Merseau Middle School ("M.S.206B"), for Sunday morning meetings that include religious worship. For the reasons set forth below, the motion for a preliminary injunction is granted.

BACKGROUND

Bronx Household — District Court

In 1995, plaintiffs brought an action in this Court challenging the School District's denial of plaintiffs' request to rent space in M.S. 206B in September 1994 for Sunday morning meetings that include religious worship. Bronx Household of Faith v. Cmty. Sch. Dist. No. 10, No. 95 Civ. 5501(LAP), 1996 WL 700915, at *1 (S.D.N.Y. Dec.5, 1996). The School District's denial was based on its "Standard Operating Procedures: Topic 5: Regulations Governing the Extended Use of School Facilities" ("SOP") and New York Education Law § 414 (McKinney's 1995), both of which prohibited rental of school property for the purpose of religious worship. Id. Specifically, section 5.9 of the SOP provided:

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 purpose of discussing religious material or material which contains a religious viewpoint or for distributing such material is permissible.

Id. New York Education Law § 414 provided that school facilities could be used for meetings, with the following exception:

[S]uch use shall not be permitted if such meeting, entertainments and occasions are under the exclusive control, and the said proceeds are to be applied for the benefit of a society, association or organization of a religious sect or denomination, or of a fraternal, secret or exclusive society or organization. . . .

Id. at *2.

In considering plaintiffs' free speech claim, I found that the School District had created a limited public forum and that its regulations "constitute[d] reasonable regulations of expression related to the legitimate government concern of preserving and prioritizing access to the Middle School primarily for educational purposes and, secondarily, for nonexclusive public and community activities." Id. at *6. I denied plaintiffs' motion for summary judgment and granted defendants' cross-motion for summary judgment. Id.

Bronx Household — Court of Appeals

The Court of Appeals affirmed the judgment, see 127 F.3d 207 (2d Cir.1997), and the Supreme Court denied certiorari, see 523 U.S. 1074, 118 S.Ct. 1517, 140 L.Ed.2d 670 (1998). In connection with its holding that M.S. 206B was "not an open public forum as that term has been defined by the Supreme Court," Bronx Household, 127 F.3d at 213, the Court of Appeals noted the distinction made by the Supreme Court in, inter alia, Rosenberger v. Rector & Visitors of the Univ. of Virginia, 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995), and Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993), "between discrimination against speech because of its subject matter, considered permissible to preserve the purposes of the limited forum, and viewpoint discrimination, considered impermissible if directed against speech within the limitations of the forum." Bronx Household, 127 F.3d at 213 (citations omitted). The Court found that:

SOP 5.9 preserves that distinction by prohibiting religious worship and religious instruction by outside groups, a prohibition that state authorities consider necessary to preserve the purposes of the limited public school forum, and by specifically permitting religious viewpoint speech in relation to matters for which the public school forum is open.

Id. The Court found the regulations to be reasonable, ("[w]e think that it is reasonable in this case for a state and a school district to adopt legislation and regulations denying a church permission to use school premises for regular religious worship" (id. at 214)), and the regulations to be viewpoint neutral, (id. at 215). In so finding, the Court noted that:

the regulation in question specifically permits any and all speech from a religious viewpoint. What it does not permit is religious worship services.

Id. In elaborating on the distinction, the Court observed that:

[t]he purposes for which the schools in District # 10 have been opened to outside organizations encompass a wide variety of civic and social uses, and any speech conducted in connection with those uses may be bottomed on a religious viewpoint. Worship and religious instruction are forms of speech and cannot be prohibited in an open forum such as a public university. See Widmar [v. Vincent], 454 U.S. [263,] 269 n. 6, 102 S.Ct. [269,] 274 n. 6 [1981]. Indeed, religious worship services may well be considered the ultimate in speech from a religious viewpoint in an open forum. But the question is whether a distinction can be drawn between it and other forms of speech from a religious viewpoint that District # 10 has elected to allow in the limited forum of a public middle school. We think it can.

Id. at 214-15. Indeed, the Court of Appeals was of the opinion that the "distinction between [discussion of secular matters from a religious viewpoint] on one hand, and religious services and instruction on the other, is not difficult for school authorities to make." Id. at 215.

Good News Club — Court of Appeals

Approximately two and one-half years after its decision in Bronx Household, the Court of Appeals decided The Good News Club v. Milford Central School, 202 F.3d 502 (2d Cir.2000), rev'd, 533 U.S. 98, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001), which affirmed the District Court's grant of summary judgment to a defendant school district. There, The Good News Club ("Good News Club" or the "Club"), "a community-based Christian youth organization open to children between the ages of six and twelve," id. at 504, sought to use school facilities for after-school meetings of children with parental permission to "have `a fun time of singing songs, hearing [a] Bible lesson and memorizing scripture.'" Id. at 507. The Milford Central School District ("Milford") had adopted a policy in accordance with New York Education Law § 414 (the "Community Use Policy"). Id. at 504. The Community Use Policy stated that residents of the district could use school facilities for "holding social, civic and recreational meetings and entertainment events and other uses pertaining to the welfare of the community, provided that such uses shall be nonexclusive and shall be open to the general public." Id. The Community Use Policy, however, also indicated that:

[s]chool premises shall not be used by any individual or organization for religious purposes. Those individuals and/or organizations wishing to use school facilities and/or grounds under this policy shall indicate on a Certificate Regarding Use of School Premises form provided by the District that any intended use of school premises is in accordance with this policy.

Id. The parties agreed that the school district had opened a limited public forum. Id. at 509. Finding that the proposed use was "the equivalent of religious worship . . . rather than the expression of religious views or values on a secular subject matter," the Interim Superintendent of Schools in Milford denied the Club's request, id. at 507, and the District Court upheld that denial, id. at 508.

On appeal, the Court of Appeals reviewed the activities proposed by the Club. It noted that as children arrived for the meetings, those who recalled and recited a "memory verse" from the previous meeting were rewarded with a prize. Id. at 504. The meeting officially began with a prayer recited by a minister, and the group sang The Good News theme song, which refers to Christ. Id. at 504-05. The next portion of the meeting

involves a "moral or value" lesson centered around a verse from either the Old or the New Testament and its teaching. To learn the "memory verse" for the lesson, the Club members play games that focus on repetition of the verse. Next, the children are told a Bible story that emphasizes the same moral value that is represented in the day's memory verse. The story concludes with a "challenge and invitation" segment, which challenges the children to live by the value taught in the day's lesson through trust in God and Jesus Christ. Depending on the elapsed time, when the story is concluded, the group leader may ask the children questions about the story or play a game that emphasizes the teaching in the story. The group may also sing a song that relates to the story.

Id. at 505.

In arguing that Milford's application of the Community Use Policy was not viewpoint neutral, the Club...