Appellants Board of Education of the City of New York and District 27 Community School Board challenge an order granting a preliminary injunction which required them to permit a religious organization to use an elementary school building to conduct church functions pending completion of renovations to its headquarters. Held, the grant of the preliminary injunction was proper on the basis that the case presents a fair ground for litigation and the balance of hardships favors appellee.
Lumbard, Oakes, and Kearse, Circuit Judges.
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 § 414 (McKinney 1988).*fn1 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.
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 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.
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 § 414 and especially subparagraph (d) thereof.*fn2 When appellee applied for a renewal of its permit, Superintendent Genn denied the application, citing the impermissible use of the school for religious purposes.
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, 70 L. Ed. 2d 440, 102 S. Ct. 269 (1981), granted the motion, compelling the School Board to issue Deeper Life a permit to use P.S. 60 pending further court order.
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, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (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, 70 L. Ed. 2d 440, 102 S. Ct. 269 (1981). As a result, it did not address intervenor New York State Attorney General's argument that New York Education Law § 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, 87 L. Ed. 2d 567, 105 S. Ct. 3439 (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; Perry Educ. Ass'n v. Perry Local Educs.' Ass'n, 460 U.S. 37, 48, 103 S. Ct. 948, 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., 482 U.S. 569, 107 S. Ct. 2568, 2571, 96 L. Ed. 2d 500 (1987); Cornelius, 473 U.S. at 806. See also Greer v. Spock, 424 U.S. 828, 47 L. Ed. 2d 505, 96 S. Ct. 1211 (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, 41 L. Ed. 2d 770, 94 S. Ct. 2714 (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 ...