significant that the Supreme Court decided solely on statutory
grounds. In fact, the Court stated, "[W]e need not decide
— and therefore express no opinion on — whether the First
Amendment requires the same result." Id.
The Court addressed the issue of whether the Act, as
interpreted, "violates the Establishment Clause of the First
Amendment, as applied to the States through the Fourteenth
Amendment." Id. Underlying this issue was petitioner's argument
that officially sanctioning the proposed club would, in effect,
result in a violation of the Establishment Clause. The Supreme
Court disagreed. Applying the logic of Widmar, where the Court
found that a policy allowing equal access to university
facilities to religious groups did not violate the
Establishment Clause, 454 U.S. at 271-75, 102 S.Ct. at 275-77,
a plurality of the Mergens Court concluded that the EAA was
capable of withstanding the constitutional rigors of Lemon. Id.
110 S.Ct. at 2371 (plurality opinion). Justices O'Connor,
White, and Blackmun grounded their determination on the fact
that the Act not only prohibited discrimination of religious
speech but also of "political, philosophical or other" speech.
Accordingly, they attributed a secular purpose to the Act. Id.
Likewise, the plurality found that the Act did not have the
primary effect of advancing religion and proffered three
grounds on which to rest their conclusion. First, Justice
O'Connor stated that "there is a crucial difference between
government speech endorsing religion, which the Establishment
Clause forbids, and private speech endorsing religion, with the
Free Speech and Free Exercises Clauses protect." Id. at 2372
(plurality) (emphasis in original) (reasoning that high school
students were sufficiently capable of understanding the
difference between a school's "endorsing student speech" and
"merely permit[ting]" it). Second, support was found in the
terms of the Act itself which require meetings to be held when
classes are not in progress, 20 U.S.C. § 4071(b), and which
restricts school officials from participating at the meetings
of student religious groups. 20 U.S.C. § 4071(c). Third,
O'Connor determined that, given the vast array of officially
sanctioned student groups, the fear of "official endorsement of
or preference for religion or a particular religious belief"
was unfounded. Id. at 2372-73.
Finally, Justice O'Connor found that compliance with the Act
did not create a possibility of excessive entanglement between
government and religion. The plurality looked to the
boundaries of the Act itself which prohibit school
"sponsorship" of religious clubs, 20 U.S.C. § 4071(c)(2), and
which, for example, forbid faculty members from participating
in any such meetings. 20 U.S.C. § 4071(c)(3) (although a
faculty member may be assigned for "custodial purposes").
As noted, the case at bar was returned to this Court at the
suggestion of the Second Circuit's Staff Counsel because of
the Supreme Court's decision in Mergens. Plaintiffs argue that
"Mergens obviously changes the constitutional landscape as far
as equal access for religious speech on public school grounds
goes." Plaintiffs' Supplementary Memorandum in Support of
Motion for Summary Judgment at 10. Plaintiffs ask this Court to
apply the reasoning of Mergens to the facts before this Court.
In contrast, defendants contend that Mergens is without effect
on this case because the Supreme Court's decision rested
entirely on the EAA. Supplemental Memorandum in Support of
Defendants' Motion for Summary Judgment at 2. Defendants
correctly observe that the question to be decided by this
Court, post-Mergens, "is not whether the school district may,
under circumstances where its policy, practice or state law
otherwise provide for such access, open its forum to religious
use, but whether it must open its forum to such use in the face
of a policy, practice and in New York a state legislative
enactment (§ 414 [of the] Education Law) which specifically
prohibits such use." Id. at 4 (emphasis in original). This
Court finds no such mandate in the Mergens decision.
Plaintiffs again put forth the argument that the School
District has created an open forum by policy and practice.
Court previously determined that "by enforcing restrictions on
access imposed by state statute and by its regulations, the
School District has created limited public forums." Lamb's
Chapel, 736 F. Supp. at 1251. In so finding, the Court
specifically rejected plaintiffs' argument that defendants
created an "open forum" merely by allowing groups unrelated to
the School District to meet on school district premises.
Specifically, the Court ruled that the School District "has not
by policy or practice either opened its facilities to
indiscriminate use by the general public or some segment of the
This is noteworthy because of the Supreme Court's discussion
in Mergens about the importance of the distinction between the
two designations. The Supreme Court pointed out that the EAA is
specifically limited to schools that maintain a "limited open
forum." Mergens, 110 S.Ct. at 2363 (citing 20 U.S.C. § 4071(a)).
In fact, the Court stated that:
[T]he Act itself neither uses the phrase "limited
public forum" nor so much as hints that the
doctrine is somehow "incorporated" into the words
of the statute. The operative language of the
statute, 20 U.S.C. § 4071(a), of course, refers to
a "limited open forum," a term that is specifically
defined in the next subsection, § 4071(b). Congress
was presumably aware that "limited public forum,"
as used by the Court, is a term of art . . . and
had it intended to import that concept into the
Act, one would suppose that it would have done so
explicitly. Indeed, Congress' deliberate choice to
use a different term — and to define that term —
can only mean that it intended to establish a
standard different from the one established by our
free speech cases.
Id. 110 S.Ct. at 2367-68 (citations omitted).
The significance of the Supreme Court's language rests in
its application of the EAA to the Court's determination that
petitioners were in violation of the Act. The situation before
this Court is readily distinguishable where defendants have
created a limited public forum to which the Act does not
Moreover, nothing in plaintiffs' argument convinces this
Court to stretch the holding in Mergens to accommodate the
facts at issue. In Mergens, the Supreme Court adopted the logic
of Widmar. Underlying that reasoning was the Widmar Court's
decision to limit the holding to "persons entitled to be [on
the campuses of State universities]." Widmar, 454 U.S. at 268,
102 S.Ct. at 274 (emphasis added). Likewise, Mergens is
distinguishable from the present case in that Mergens, like
Widmar, is addressed to students "entitled" to be on school
This Court is presented with a very different scenario.
Plaintiffs, who are not students, are seeking to use school
facilities during nonschool hours. The Second Circuit has
specifically held that, at least in New York, public schools
"are not, as to the general community, traditional public
fora." Deeper Life, 852 F.2d at 679 (citations omitted). As
noted, under circumstances where a school district creates a
"limited public forum," as is the situation here, "property
remains a nonpublic forum as to all unspecified uses, . . . 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." Deeper Life,
852 F.2d at 679-80. Nothing the School District has done, by
its policy or its practice, belies this standard.
Significantly, after the Supreme Court rendered its decision
in Mergens, the Second Circuit decided the case of Travis v.
Owego-Appalachin School District, 927 F.2d 688 (2d Cir. 1991),
a case involving the same issue as the one before this
Court.*fn7 In Travis, the Second Circuit ruled that a school
district's denial of plaintiff Birthright of Owego, Inc.'s
application to use the school district's facilities for the
purpose of a fundraiser involving "religious
and/or political activity" constituted a violation of the Free
Speech and Establishment Clauses. 927 F.2d at 694. The
Travis court, which found that defendants had created a limited
public forum, based its conclusion on the school district's
past practice which included permitting school facilities to be
used for a religious Christmas program. As such, defendant's
selective denial of Birthright's application was not
viewpoint-neutral and, therefore, was unconstitutional. Id. at
692-94. In contrast, this Court ruled that the Center Moriches
School District's past practice has prohibited such use in all
However, this Court finds the most compelling support for
its decision in the language of Mergens itself which states,
"[b]ecause we rest our conclusion on statutory grounds, we need
not decide — and therefore express no opinion on — whether
the First Amendment requires the same result." Mergens, 110
S.Ct. at 2370. As defendants accurately assert, the Mergens
decision rested on an act of Congress, permitting secondary
school students to conduct religious activities on school
premises. Neither Congress nor the Supreme Court has seen fit
to require a school district to open its doors to nonstudents
who wish to use school facilities for the purpose of conducting
religious activities within a school. Therefore, this Court
finds that if the intended use of school facilities is not
required or authorized by statute, there is no constitutional
right to such use where a school district has not, by policy or
practice, permitted a similar use in the past. See Mergens, 110
S.Ct. at 2370; Travis, 927 F.2d at 692.
B. Summary Judgment
A motion for summary judgment may be granted only when
"there is no genuine issue as to any material fact and  the
moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986); Donahue v. Windsor Locks Bd.
of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). The burden is
on the moving party to clearly establish the absence of a
genuine issue as to any material fact. Donahue, 834 F.2d at 57.
In addition, the district court must resolve all ambiguities
and draw all reasonable inferences in favor of the non-moving
party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82
S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam). However, the
moving party "may not rest upon the mere allegations or denials
of the adverse party's pleadings . . . [but] must set forth
specific facts showing that there is a genuine issue for
trial." Fed.R.Civ.P. 56(e). The Court notes that an unresolved
factual issue is one that a reasonable fact finder could decide
in favor of either party. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
Currently, both parties move for summary judgment pursuant to
Rule 56(c) of the Federal Rules of Civil Procedure. Having
found that Mergens is not controlling, the Court turns to
address these motions.
The parties agree that the case is to be decided on the
basis of the undisputed facts which consist of testimony and
exhibits presented to the Court during the hearing on the
motion for a preliminary injunction. In this Court's May 16,
1990 decision, the Court determined that "plaintiffs have not
sufficiently shown that defendants have a practice of
permitting use by any organization for religious purposes."
Lamb's Chapel, 736 F. Supp. at 1253. In the absence of such a
finding, summary judgment is appropriate. See Travis, 927 F.2d
at 692. As both the Supreme Court and the Second Circuit have
noted, "[t]he First Amendment . . . does not guarantee
unlimited access to government-owned property for purposes of
expression. Government may thus properly regulate such access
depending on the nature of the property at issue." Id. at 691
(citing Cornelius v. NAACP Legal Defense & Educ. Fund, Inc.,
473 U.S. 788, 799-800, 105 S.Ct. 3439, 3447-3448, 87 L.Ed.2d
Based on the record, this Court determined that the School
District's facilities are "limited public forums." Lamb's
Chapel, 736 F. Supp. at 1252. The Court based its determination,
in part, on the fact
that, although § 414 of the New York Education Law enumerates
nine purposes for which public school facilities may be used by
the general public, nowhere does it include religious worship
or instruction. See § 414; Deeper Life, 852 F.2d at 680
(stating that critical to determining whether the state has
created a limited public forum is the state's intent in
establishing the forum). Moreover, Rule No. 7 explicitly
proscribes using school facilities for religious purposes,
which this Court considers a strong indication of an intent to
limit the availability of such property.
In a case directly on point, the Second Circuit stated that
"in a limited public forum, government is free to impose a
blanket exclusion on certain types of speech. . . ."
Travis, 927 F.2d at 692. However, the Second Circuit cautioned
that once a limited public forum is opened to a particular type
of speech, "selectively deny[ing] access for other activities
of th[e] same genre" is forbidden. Id.
In the case at bar, this Court specifically determined that
plaintiffs have not presented sufficient evidence to create a
fair ground for litigation as to whether the School District
has by practice allowed organizations of similar character to
Lamb's Chapel to use its facilities for religious purposes.
Moreover, nothing in plaintiff's moving papers persuades the
Court to decide otherwise. Because the School District has
not, by policy or practice, opened its doors to groups akin to
Lamb's Chapel, this Court holds that the School District's
denial of plaintiffs' applications to show the film series is
viewpoint-neutral and, hence, constitutional. See id. at 694.
The Court, having found that no genuine issue exists to be
decided at trial, grants defendants' motion for summary
judgment. Accordingly, plaintiffs' motion is denied. The Clerk
of the Court is directed to close the file in this case.
Section 414 of the New York Education Law provides in
1. Schoolhouses and the grounds connected
therewith and all property belonging to the
district shall be in the custody and under the
control and supervision of the trustees or board
of education of the district. The trustees or
board of education may adopt reasonable
regulations for the use of such schoolhouses,
grounds or other property, all portions thereof,
when not in use for school purposes, or when the
school is in use for school purposes . . . for
such other public purposes as are herein provided
. . .:
(a) For the purpose of instruction in any
branch of education, learning or the arts.
(b) For public library purposes, subject to the
provisions of this chapter, or as stations of
(c) For holding social, civic and recreational
meetings and entertainments, and other uses
pertaining to the welfare of the community; but
such meetings, entertainment and uses shall be
non-exclusive and shall be open to the general
(d) For meetings, entertainments and occasions
where admission fees are charged, when the
proceeds thereof are to be expended for an
educational or charitable purpose; but such use
shall not be permitted if such meetings,
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 other than
organizations of veterans of the military, naval
and marine service of the United States and
organizations of volunteer firefighters or
volunteer ambulance workers.
(e) For polling places for holding primaries
and elections and for the registration of voters
and for holding political meetings.
(f) For civic forums and community centers.
(g) For classes of instruction for mentally
retarded minors operated by a private
organization approved by the commissioner of
(h) For recreation, physical training and
athletics, including competitive athletic
contests of children attending a private,
(i) To provide child care services during
non-school hours. . . .
N YEduc.Law § 414 (McKinney 1988 & Supp. 1991).