The Bronx Household of Faith v. Bd. of Educ. of The City of N.Y.

• Decision Date: 02 June 2011
• Docket Number: Docket No. 07–5291–cv.
• Parties: The BRONX HOUSEHOLD OF FAITH, Robert Hall, and Jack Roberts, Plaintiff–Appellees,v.BOARD OF EDUCATION OF the CITY OF NEW YORK and Community School District No. 10, Defendant–Appellants.
• Court: U.S. Court of Appeals — Second Circuit

650 F.3d 30

The BRONX HOUSEHOLD OF FAITH, Robert Hall, and Jack Roberts, Plaintiff–Appellees,

v.BOARD OF EDUCATION OF the CITY OF NEW YORK and Community School District No. 10, Defendant–Appellants.

Docket No. 07–5291–cv.

United States Court of Appeals, Second Circuit.

Argued: Oct. 6, 2009.Decided: June 2, 2011.

Jane L. Gordan, Senior Counsel (Edward F.X. Hart, Lisa Grumet, Janice Casey Silverberg, on the brief), for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, NY, for Appellants.Jordan W. Lorence, Alliance Defense Fund, Washington, D.C. (Joseph P. Infranco, Jeffrey A. Shafer, David A. Cortman, Benjamin W. Bull, on the brief), for Appellees.Michael J. Garcia, United States Attorney for the Southern District of New York, New York, NY, (David J. Kennedy, Assistant United States Attorney, Southern District of New York, Grace Chung Becker, Acting Assistant Attorney General, Dennis J. Dimsey, Eric W. Treene, Karl N. Gellert, Attorneys, Appellate Section, Civil Rights Division, U.S. Department of Justice, on the brief), for Amicus Curiae United States of America.Mitchell A. Karlan, Gibson, Dunn & Crutcher LLP, New York, NY, (Aric H. Wu, Farrah L. Pepper, Gibson, Dunn & Crutcher LLP, Carol Nelkin, Jeffrey P. Sinensky, Kara H. Stein, The American Jewish Committee, on the brief), for Amicus Curiae The American Jewish Committee.Isaac Fong, Center for Law and Religious Freedom, Springfield, VA, (Kimberlee Wood Colby, Gregory S. Baylor, on the brief), for Amicus Curiae The Christian Legal Society.Eloise Pasachoff, Committee on Education and the Law, Association of the Bar of the City of New York, New York, NY, (Jonathan R. Bell, Rosemary Halligan, Laura L. Himelstein, on the brief), for Amicus Curiae Association of the Bar of the City of New York.Before: JOHN M. WALKER, JR., LEVAL, and CALABRESI, Circuit Judges.Judge CALABRESI concurs in the opinion and has filed an additional concurring opinion.Judge JOHN M. WALKER, JR. dissents by separate opinion.LEVAL, Circuit Judge:

Defendants, the Board of Education of the New York City Public Schools and Community School District No. 10 (collectively, “the Department of Education” or “the Board”),¹ appeal from an order of the United States District Court for the Southern District of New York (Preska, C.J.), which granted summary judgment to Plaintiffs the Bronx Household of Faith (“Bronx Household”), a Christian church, and its pastors Robert Hall and Jack Roberts, and permanently enjoined the Board from enforcing against Bronx Household a Standard Operating Procedure (“SOP”) that prohibits the use of school facilities by outside groups outside of school hours for “religious worship services.” We conclude that the challenged rule does not constitute viewpoint discrimination because it does not seek to exclude expressions of religious points of view or of religious devotion, but rather excludes for valid non-discriminatory reasons only a type of activity—the conduct of worship services. We also conclude that because Defendants reasonably seek by the rule to avoid violating the Establishment Clause, the exclusion of religious worship services is a reasonable content-based restriction, which does not violate the Free Speech Clause. Accordingly, we reverse the judgment of the district court and vacate the injunction.

BACKGROUND

The relevant facts are familiar, and are not in dispute. See Bronx Household of Faith v. Bd. of Educ. of the City of New York (Bronx Household III), 492 F.3d 89 (2d Cir.2007). Under New York State law, a local public school district may permit its facilities to be used outside of school hours for purposes such as “social, civic and recreational meetings and entertainments, and other uses pertaining to the welfare of the community,” as long as the uses are “nonexclusive and ... open to the general public.” N.Y. Educ.Code § 414(1)(c). Pursuant to this provision, New York City's Department of Education developed a written policy governing use of school facilities during after-school hours as part of its Standard Operating Procedures Manual. The policy, or SOP, permits outside groups to use school premises for the purposes described in the state law, when the premises are not being used for school programs and activities, but subject to limitations. In earlier stages of this litigation, SOP § 5.9 prohibited the use of school property for “religious services or religious instruction.” ² Bronx Household of Faith v. Cmty. Sch. Dist. No. 10 (Bronx Household I), 127 F.3d 207, 210 (2d Cir.1997).

In 1994, Bronx Household applied to use space in the Anne Cross Mersereau Middle School (“M.S.206B”) in the Bronx, New York, for its Sunday morning “church service[s].” Bronx Household of Faith v. Bd. of Educ. of the City of New York, 226 F.Supp.2d 401, 410 (S.D.N.Y.2002) (quoting First Affidavit of Robert Hall). According to Bronx Household's application, its services would include “singing of Christian hymns and songs, prayer, fellowship with other church members and Biblical preaching and teaching, communion, [and] sharing of testimonies,” followed by a “fellowship meal,” during which attendees “talk to one another, [and] share one another's joys and sorrows so as to be a mutual help and comfort to each other.” Id. The Board denied Bronx Household's application under SOP § 5.9. Bronx Household I, 127 F.3d at 211.

Plaintiffs brought suit, contending that the Board's denial of Bronx Household's application constituted viewpoint discrimination in violation of the Free Speech Clause of the First Amendment. The district court granted the Board's motion for summary judgment, and dismissed the suit. Bronx Household of Faith v. Cmty. Sch. Dist. No. 10, No. 95 Civ. 5501, 1996 WL 700915 (S.D.N.Y. Dec. 5, 1996) (Preska, J.). We affirmed, concluding that the Department of Education had created a limited public forum by opening school facilities only to certain activities, and that the exclusion of religious services and religious instruction was viewpoint-neutral and reasonable in light of the forum's purposes. Bronx Household I, 127 F.3d at 211–15, 217.

In 2001, however, the Supreme Court ruled in Good News Club v. Milford Central School, 533 U.S. 98, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001), that it was unconstitutional for a public school district in Milford, New York, to exclude from its facilities “a private Christian organization for children,” which had requested permission to use space in a school building after school hours to sing songs, read Bible lessons, memorize scripture, and pray. Id. at 103, 121 S.Ct. 2093. The Milford district's policy, in accordance with New York state law, permitted school facilities to be used for “social, civic and recreational meetings and entertainment events, and other uses pertaining to the welfare of the community.” Id. at 102, 121 S.Ct. 2093 (quoting N.Y. Educ.Code § 414(1)(c)). However, it prohibited use “by any individual or organization for religious purposes,” which school district officials interpreted as prohibiting “religious worship” or “religious instruction.” Id. at 103–04, 121 S.Ct. 2093. The Supreme Court concluded 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,” and, therefore, the school district's denial of the club's application constituted impermissible viewpoint discrimination in the context of a limited public forum. Id. at 109, 121 S.Ct. 2093.

After the Supreme Court's decision in Good News Club, Bronx Household applied again, and its application was again denied. Bronx Household of Faith v. Bd. of Educ. of the City of New York (Bronx Household II), 331 F.3d 342, 346–48 (2d Cir.2003). Plaintiffs brought a new action, and this time the district court, citing Good News Club, preliminarily enjoined the Board from denying the permit. Bronx Household, 226 F.Supp.2d at 427. We affirmed the preliminary injunction, finding that the district court did not abuse its discretion, and acknowledging the “factual parallels between the activities described in Good News Club and the activities at issue in the present litigation.” Bronx Household II, 331 F.3d at 354. After the issuance of the preliminary injunction, Bronx Household applied for, and was granted, permission to use P.S. 15 in the Bronx for its Sunday “Christian worship service[s].” Bronx Household III, 492 F.3d at 94, 101 (Calabresi, J., concurring).

Bronx Household thereafter moved for summary judgment to convert the preliminary injunction into a permanent injunction, and the Board cross-moved for summary judgment. During the pendency of the motions for summary judgment, the Board wrote to the district court asking the court to adjudicate the issue under a revised SOP, numbered SOP § 5.11,³ which was intended to replace the old standard. The Board advised that the new SOP § 5.11 had been “approved at the highest levels of the Department of Education” and that if Bronx Household were to reapply, its application would be rejected under the new SOP § 5.11. Id. at 95 n. 2. The text of the new SOP § 5.11 prohibited use of school property for “religious worship services, or otherwise using a school as a house of worship.” ⁴ The district court, after initially expressing doubt about its jurisdiction to rule on the constitutionality of a rule whose status was unclear and which had not been applied against Plaintiffs, nevertheless concluded that the question was justiciable and granted summary judgment in favor of Bronx Household, permanently enjoining the Board from enforcing the proposed SOP § 5.11. Bronx Household of Faith v. Bd. of Educ. of City of New York, 400 F.Supp.2d 581, 588, 601 (S.D.N.Y.2005). The district court concluded that its decision was compelled by the Supreme Court's decision in Good News Club.

On appeal, a majority consisting of Judge Calabresi and me, over dissent by Judge Walker, vacated the...