among those singing.'" Timothy Hsu Aff. P 14(A), (B); Amended Complaint P 57(A), (B). Lastly, the Activities Coordinator is responsible for planning and oversight of activities and "determining which activities would be appropriate in which to participate, e.g., a canned food drive, and those activities in which participation would offend Christian sensibilities, e.g., condom distribution." Timothy Hsu Aff. P 15(A), (B); Amended Complaint P 58(A), (B). In addition to their other activities, each officer is required to (1) "be prepared . . . to be called upon at any time to open or close a meeting with prayer . . . or to lead a Bible study"; (2) "be prepared . . . to serve as a spokesperson for the Bible club in relating the Christian perspective on any particular issue"; and (3) "be able to give testimony to the life-changing presence of Jesus Christ in his/her life and relate that experience in terms of on-going application to the lives of others." Timothy Hsu Aff. PP 11(C), (D) and (E); 12(C), (D) and (E); 13(C), (D) and (E); 14(C), (D) and (E); and 15(C), (D) and (E); Amended Complaint PP 54(C), (D) and (E); 55(C), (D) and (E); 56(C), (D) and (E); 57(C), (D) and (E); and 58(C), (D) and (E). In short, the roles of these officers, according to plaintiffs, are "to not only participate but lead the club in [its] activities." Plaintiffs' Memorandum in Support of Amended Complaint and Motion for Preliminary Injunction ("Pls. Mem."), at 2-3 (emphasis in original).
Based on the roles of the bible club's officers, plaintiffs argue that the condition prohibiting the club from requiring that officers be "professed Christians" "would influence the form and content of both the club itself, the day to day activities of its members and result in a violation of Plaintiffs' sincerely-held religious beliefs that all club officers should be Christians." Amended Complaint P 53. As a result, plaintiffs claim the School District's "permission for the formation of the Christian Bible Club, contingent upon non-Christians being allowed as officers in the Club," Pls. Mem. at 4, violates the EAA, the First and Fourteenth Amendments, and the RFRA.
Following oral argument on the preliminary injunction motion, the Court reserved decision. This opinion follows.
A. Preliminary Injunction
In the Second Circuit, to obtain a preliminary injunction the moving party 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 the hardships tipping decidedly toward the party requesting the preliminary relief.'" Deeper Life Christian Fellowship, Inc. v. Board of Educ., 852 F.2d 676, 679 (2d Cir. 1988) (quoting Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979) (per curiam)).
B. Irreparable Harm
Defendants contend that plaintiffs will not suffer irreparable harm because the club has been granted access and is not being deprived of their First Amendment rights, and because the club has refused to comply with the condition as to officership and has held no meeting. Defendants' Memorandum of Law in Opposition to Plaintiffs' Motion for a Preliminary Injunction and in Support of Defendants' Cross-Motion for Judgment on the Pleadings ("Defs. Mem."), at 8. Defendants misconstrue plaintiffs' contention as to irreparable harm. Essentially, plaintiffs claim that defendants have impermissibly conditioned their access to the school forum in violation of, inter alia, their First Amendment rights. If, as plaintiffs contend, they are being deprived of their First Amendment rights by defendants' nondiscrimination policy, they have and will continue to sustain irreparable harm. As the Supreme Court has stated: "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976); see Deeper Life, 852 F.2d at 679. Accordingly, this Court finds that plaintiffs have demonstrated that they will suffer irreparable harm.
C. Plaintiffs' Claims
Plaintiffs claim that they are entitled to preliminary injunctive relief because the School District, by imposing its nondiscrimination policy on the bible club,
has violated the EAA, the First and Fourteenth Amendments, and the RFRA.
The Court must analyze each of these claims to determine whether plaintiffs have satisfied the second prong of the preliminary injunction standard. Neither party cites any case on point, and the Court has found none.
1. Equal Access Act Claim
The EAA requires public secondary schools receiving federal financial assistance to grant equal access to student groups if the school maintains a "limited open forum," i.e., if it permits "one or more noncurriculum related student groups to meet on school premises during noninstructional time." 20 U.S.C. § 4071(a) and (b).
In Board of Education of Westside Community Schools v. Mergens, 496 U.S. 226, 236, 110 L. Ed. 2d 191, 110 S. Ct. 2356 (1990), the Supreme Court held that where the Act's obligations are triggered, the "school may not deny other clubs, on the basis of the content of their speech, equal access to meet on school premises during noninstructional time." The Court further held that the Act, on its face and as applied to allow access to a student religious group, does not violate the Establishment Clause. Id. at 253.
The Act, the Court noted, was "intended to address perceived widespread discrimination against religious speech in public schools." Id. at 239. To this end, the "Act's central command [is] that schools not discriminate against religious speech." See Garnett v. Renton Sch. Dist. No. 403, 987 F.2d 641, 645 (9th Cir.), cert. denied, 126 L. Ed. 2d 41, 114 S. Ct. 72 (1993).
The issue is not whether the EAA requires the School District to open its forum to the bible club, for the School District has already agreed to permit the bible club to meet. Nor is the issue, contrary to plaintiffs' arguments, whether the EAA prohibits the School District from determining the leaders, i.e., the "officers," of the student-initiated and student-led bible club, for the School District does not seek to do that. Rather, the issue is whether the EAA requires the School District to exempt a student-initiated and student-led religious club from its nondiscrimination policy, purportedly applied to all student clubs, and permit the club to exclude students from running for office upon the basis of religious beliefs, although the club is open to all students on a voluntary basis.
The crux of plaintiffs' EAA claim is that the March 10 Resolution's "open officership" requirement, see Pls. Mem. at 11-12, violates § 4071(d)(1) of the EAA, which provides: "Nothing in this subchapter shall be construed to authorize the United States or any State or political subdivision thereof--(1) to influence the form or content of any prayer or other religious activity." 20 U.S.C. § 4071(d)(1). Plaintiffs argue that the "plain language of this statute prohibits the School District from attempting to influence the Bible Club's structure. " Pls. Mem. at 8 (emphasis added). In this respect, plaintiffs argue that the "manifest meaning of the word 'form' is: 'the shape and structure of something . . . .'" Id. at 8 (quoting Webster's Third New Int'l Dictionary 892 (1993)). Thus, plaintiffs reason, the School District's policy requiring "open officership without reference to religion and creed" is an attempt to influence the "structure" of the club, which translates into an attempt to influence the "form" of the club's activity. Id. Based on the same reasoning, plaintiffs argue that the School District's policy also violates § 4071(c)(1) of the Act. This subsection provides that a school offers a "fair opportunity" to students who wish to conduct a meeting within its limited open forum if the school provides that the "meeting is voluntary and student initiated." 20 U.S.C. § 4071(c)(1). Plaintiffs argue that the School District cannot comply with this "fair opportunity" criterion because the "Bible Club structural requirements are neither 'voluntary,' nor 'student initiated.' Once the Roslyn School District became intimately involved in structuring the workings of the Club, it crossed the impassable boundaries of the [Act]." Pls. Mem. at 9. According to plaintiffs, the School District, by its actions, became impermissibly involved in the "administration of religious activities" in violation of the Act. Id. at 9-10 (citing Mergens, 496 U.S. at 253). In addition, plaintiffs argue that the School District's "requirement was created by the School Board just to impede the formation of the Bible Club." Id. at 11. For these reasons, plaintiffs argue, the School District may not impose an "open officership" policy upon the bible club or condition access thereon.
Defendants maintain that application of the School District's nondiscrimination policy to the bible club does not contravene the Act, and that the School District has satisfied its obligations under the Act by affording the bible club access to its facilities on the same basis and subject to the same terms and conditions as all other noncurriculum-related student clubs.
Defendants assert that the School District's nondiscrimination policy pre-dated plaintiffs' request for recognition of the bible club, and that the policy has been imposed on all student clubs. Tassone Aff. PP 15, 30. Defendants argue that the Act "does not require that the [School] District afford a religion club 'privileges' which are not available to other non-curriculum clubs." Defs. Mem. at 14-15. Rather, according to defendants, the club must
be open, in all respects, to all members of the student body without regard to their religious beliefs. Students may openly express their religious beliefs at club meetings--even as part of an election campaign. Requiring a student, however, to subscribe to a particular religious belief as a condition of eligibility to hold office is not permitted.
Tassone Aff. P 23 (emphasis in original). Defendants rely principally on § 4071(d)(5) and (7), which provide that the Act shall not be construed to authorize a school district "to sanction meetings that are otherwise unlawful," 20 U.S.C. § 4071(d)(5), or "to abridge the constitutional rights of any person," id. § 4071(d)(7). By allowing the bible club and its members to discriminate against other students on the basis of religion, defendants maintain that the School District would be sanctioning abridgement of excluded students' constitutional rights (i.e., denial of free exercise of religion, association and speech rights of those students excluded from officership on the basis of religious speech and beliefs), and sanctioning meetings unlawful under the Fourteenth Amendment of the United States Constitution, Article 1, § 11 of the New York State Constitution,
and § 44-a of the New York Civil Rights Law.
See Defs. Mem. at 15, 17-19.
According to defendants, the School District, by requiring the bible club to abide by the nondiscrimination policy, was simply exercising authority to "protect the well-being of the student body and to advance the educational activities and mission of the District," authority expressly recognized by § 4071(f) of the Act. Id. at 15-16. Section 4071(f) provides: "Nothing in [the Act] shall be construed to limit the authority of the school . . . to maintain order and discipline on school premises [and] to protect the well-being of students . . . ." 20 U.S.C. § 4071(f).
The Court begins with the plain language of the statute. See Mergens, 496 U.S. at 237. Section 4071(a) prohibits the School District from denying the bible club "equal access." Equal access provides a student bible club the right "to meet on school property on the same basis as other noncurriculum related clubs." Garnett, 987 F.2d at 646 (emphasis added). The provisions of subsection (d) designate rules of construction applicable to the Act, not exceptions to it. See id. at 644-45. "As such, [subsection (d)] instructs the court how to interpret the Act's central command that schools not discriminate against religious speech." Id. at 645. Essentially, subsection (d) instructs that school officials not unconstitutionally apply the Act. Id.
In Mergens, the Supreme Court found that the EAA "reflected at least some consensus of a broad legislative purpose." 496 U.S. at 239. A broad reading, the Court determined, "would be consistent with the views of those who sought to end discrimination by allowing students to meet and discuss religion before and after classes." Id. Thus, the Supreme Court determined that the entire Act "must be read to effectuate a broad Congressional purpose." Garnett, 987 F.2d at 645. The Act's legislative history, however, provides no specific guidance as to whether the School District's nondiscrimination policy as applied to plaintiffs' bible club violates the Act.
Assuming, as the School District maintains, that it subjects all noncurriculum-related student clubs to its nondiscrimination policy, the School District complies with the Act by granting the bible club access subject to the same terms and conditions as all other noncurriculum-related student clubs. Providing access to the bible club on the same basis as all other noncurriculum-related student clubs amounts to "equal access." See Garnett, 987 F.2d at 646; cf. Lloyd v. Grella, 83 N.Y.2d 537, 611 N.Y.S.2d 799, 801, 634 N.E.2d 171 (N.Y. 1994) (holding statute granting military recruiters access to educational venues "on the same basis" as all other employment recruiters grants "equal access" not "unqualified access"; and upholding school board resolution barring employers, including military, who discriminated on the basis of sexual orientation from school site student recruitment) . Thus, it is not a denial of "equal access," as commanded by the Act, for the School District to require that all student-initiated and student-led clubs, including a religious club, have membership and officership open, in all respects, to all Roslyn students pursuant to a nondiscrimination policy.
In this Court's view, the School District's nondiscrimination policy cannot be said to influence the form or content of the bible club's proposed religious speech and religious activities in that, as discussed herein, the School District's policy does not unconstitutionally interfere in the club's members' and officers' determination of appropriate prayer and other religious activity, for example, "Christian fellowship," "singspiration," and "testimonies of their belief, faith, walk, experiences in or with Christ Jesus," see Constitution of the Roslyn High School Walking On Water Club (Christian Fellowship), Appendix A. The nondiscrimination policy does not impermissibly inhibit or prevent the bible club's members from selecting those students they desire to lead the club in prayer or other religious activity, contrary to plaintiffs' contentions.
Moreover, any claim that the policy jeopardizes the bible club's ability to be led by students freely chosen by its members arguably is counteracted by the School District's obligation to permit students to initiate and organize additional religious clubs if requested. See Mergens, 496 U.S. at 252. Should students holding religious beliefs differing from those of the bible club's members desire to conduct meetings to engage in prayer or other religious activity, they would be entitled to equal access as well, subject of course to the School District's nondiscrimination policy. Elective forces would also necessarily govern the leadership of any other religious club.
If the bible club were a distinctly private club then there would be force to plaintiffs' contention, see, e.g. Tr. 25-26, 37, that the club and its members may discriminate on the basis of religion, race, sex, etc., in their private affairs as against others. However, they are not a distinctly private group--they are a student group, which sought and was granted school-recognized access to public school facilities. Presumably, the bible club and its members intend to take advantage of the benefits attendant to equal access. It is not unreasonable to require that they also accept the conditions thereto, including the prohibition on discrimination against any Roslyn student. To allow an exemption from the nondiscrimination policy, the School District would be tolerating, if not expressly sanctioning, conduct that would be unconstitutional for it to engage in directly. See 20 U.S.C. § 4071(d)(7); see also Garnett, 987 F.2d at 645 (§ 4071(d)(7) is a "'savings' clause that protects against reading implications into the EAA which might abridge federal constitutional rights . . . for persons . . . within its scope"). Although the parties vigorously dispute whether the student bible club and its members are state actors or a place of public accommodation if they engage in discriminatory practices through the use of public school facilities, this Court does not find those issues determinative of plaintiffs' claim. Rather, what is determinative is that it appears that the School District has provided the bible club "equal access" as the nondiscrimination policy is not aimed at suppression of religious speech or beliefs, but at furthering the School's interest in protecting the well-being of all students by ensuring equal and nondiscriminatory access of all students to student clubs.
Although plaintiffs suggest that by allowing the School District's policy to stand the bible club risks facing "non-Christian leadership,"
there is no evidence in the record whatsoever that such an event is threatened or likely. Indeed, Emily Hsu and Timothy Hsu both assert that they have "not had any conversation or received any other information from any student at Roslyn High School who is not a Christian, indicating their desire to become an officer in our Christian Bible club." Emily Hsu Aff. P 43; Timothy Hsu Aff. P 21. Plaintiffs' speculation that the bible club may be "taken over" by "atheists" or any other students or group does not warrant the relief they seek.
As there is no basis in the record for plaintiffs' suggestion that the School District will not afford the bible club the same privileges afforded other noncurriculum-related student clubs and allow it to meet on the same terms and conditions as those other clubs, the School District appears to have satisfied its obligation under the Act of permitting religious speech and religious activities on a nondiscriminatory basis.
Accordingly, plaintiffs have failed to demonstrated a likelihood of success or sufficiently serious questions as to whether the nondiscrimination policy, as applied to the bible club, violates the EAA.
2. First and Fourteenth Amendment and RFRA Claims
It is well recognized that "students [do not] shed their constitutional rights . . . at the schoolhouse gate." Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 506, 21 L. Ed. 2d 731, 89 S. Ct. 733 (1969) (upholding rights of secondary school students to wear armbands protesting Vietnam War); see also Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266, 98 L. Ed. 2d 592, 108 S. Ct. 562 (1988). Whether in school or out of school, students are "persons" under the Constitution. Tinker, 393 U.S. at 511. As such,
they are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. . . . The principle use to which the schools are dedicated is to accommodate students during prescribed hours for the purpose of certain types of activities. Among those activities is personal intercommunication among the students. This is not only an inevitable part of the process of attending school; it is also an important part of the educational process. A student's rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects . . . , if he does so without "materially and substantially interfering with the requirements of appropriate discipline in the operation of the school" and without colliding with the rights of others.
Id. at 511-13. It is indisputable that the "Fourteenth Amendment protects the rights of students against encroachment by public school officials." New Jersey v. T.L.O., 469 U.S. 325, 340-42, 83 L. Ed. 2d 720, 105 S. Ct. 733 (1985). Thus, the Supreme Court reiterated in T.L.O.:
The Fourteenth Amendment . . . protects the citizen against the State itself and all of its creatures--Boards of Education not excepted. These have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.
Id. at 334 (quoting West Virginia State Board of Educ. v. Barnette, 319 U.S. 624, 637, 87 L. Ed. 1628, 63 S. Ct. 1178 (1943)).
Nevertheless, students' constitutional rights are "not automatically coextensive with the rights of adults in other settings." Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682, 92 L. Ed. 2d 549, 106 S. Ct. 3159 (1986). Thus, the Court has recognized the propriety of restrictions on a student's First Amendment rights in the school setting, particularly where the student's "speech or action . . . intrudes upon the work of the schools or the rights of other students." Tinker, 393 U.S. at 508; see, e.g., Kuhlmeier, 484 U.S. at 266 (holding school need not tolerate student speech inconsistent with educational mission of school, even though government could not censor similar speech outside school context); Fraser, 478 U.S. at 685-86 (holding secondary school student could be disciplined for delivering sexually explicit, but not legally obscene, speech at school assembly); T.L.O., 469 U.S. at 340-42 (holding "school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject").
The religion clauses of the First Amendment, as applied to the states--here, the School District--through the Fourteenth Amendment, see Cantwell v. Connecticut, 310 U.S. 296, 303, 84 L. Ed. 1213, 60 S. Ct. 900 (1940), provide that a state "shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. Const. amend. I. These clauses mean that "religious beliefs and religious expression are too precious to be either proscribed or prescribed by the State." Lee v. Weisman, 120 L. Ed. 2d 467, 112 S. Ct. 2649, 2654 (1992). The First Amendment "requires the state to be neutral in its relations with groups of believers and non-believers; it does not require the state to be their adversary. State power is no more to be used to handicap religions than it is to favor them." See Everson v. Board of Educ., 330 U.S. 1, 18, 91 L. Ed. 711, 67 S. Ct. 504 (1947).
Under the Establishment Clause "total separation is not possible in an absolute sense, [for] some relationship between government and religious organizations is inevitable." Lemon v. Kurtzman, 403 U.S. 602, 614, 29 L. Ed. 2d 745, 91 S. Ct. 2105 (1971); Catholic High Sch. Ass'n of Archdiocese of New York v. Culvert, 753 F.2d 1161, 1166 (2d Cir. 1985). Rather, "the line of separation, far from being a 'wall,' is a blurred, indistinct, and variable barrier depending upon all the circumstances of a particular relationship." Lemon, 403 U.S. at 614; Culvert, 753 F.2d at 1166. In other words, the Constitution does not require "complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any." Lynch v. Donnelly, 465 U.S. 668, 673, 104 S. Ct. 1355, 79 L. Ed. 2d 604 (1984). Indeed, through accommodation "of all faiths and all forms of religious expression" our government has "'respected the religious nature of our people.'" Id. at 677-78 (quoting Zorach v. Clauson, 343 U.S. 306, 314, 96 L. Ed. 954, 72 S. Ct. 679 (1952)).
To facilitate analysis of an Establishment Clause claim, the Supreme Court has applied a now-familiar three-pronged test. To satisfy the Establishment Clause, a governmental policy --here, the School District's nondiscrimination policy--must (1) have a secular purpose; (2) have a principal or primary effect that neither advances nor inhibits religion; and (3) not foster an excessive government entanglement with religion. Lemon, 403 U.S. at 612; see also Widmar V. Vincent, 454 U.S. 263, 271, 70 L. Ed. 2d 440, 102 S. Ct. 269 (1981); Committee for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 772-73, 37 L. Ed. 2d 948, 93 S. Ct. 2955 (1973); see, e.g., Rosenberger v. Rector & Visitors of Univ. of Va., 18 F.3d 269, 282 (4th Cir.) (applying Lemon test to university policy excluding religious activities from eligibility for student activities funds), cert. granted, 115 S. Ct. 417 (1994); DeMarco v. Holy Cross High Sch., 4 F.3d 166, 168 (2d Cir. 1993) (applying Lemon test to determine whether Age Discrimination in Employment Act applies to action brought by lay teacher against his parochial school employer).
Plaintiffs do not dispute that the nondiscrimination policy satisfies the first prong of the Lemon test. A nondiscrimination policy undeniably has a secular purpose of advancing the school educational mission free of discriminatory influence. Cf. Mergens, 496 U.S. at 248 ("Congress' avowed purpose--to prevent discrimination against religious and other types of speech--is undeniably secular."); Rosenberger, 18 F.3d at 284 (enforcement of nondiscrimination policy advances the "secular purpose" of avoiding an establishment of religion at school). It seems clear the School District's policy was not motivated wholly by religious considerations, Wallace v. Jaffree, 472 U.S. 38, 56, 86 L. Ed. 2d 29, 105 S. Ct. 2479 (1985); Lynch, 465 U.S. at 680; nor does the policy evince an intent to promote or inhibit a particular point of view in religious matters, see Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 335, 97 L. Ed. 2d 273, 107 S. Ct. 2862 (1987).
Rather, plaintiffs argue that the School District's nondiscrimination policy requiring "open officership without reference to religion and creed," Pls. Mem. 11-12, violates the second and third prongs of the Lemon test. Plaintiffs argue that the effect of the nondiscrimination policy on the bible club is to inhibit plaintiffs' exercise of their religious beliefs, particularly in their choice of the club's leaders, and that the School District will inevitably "invasively monitor the religious activities" of the club to ensure enforcement of the policy. Id. at 3, 11-16.
School-time religious activities at public school facilities are offensive to the Establishment Clause, particularly because of the public school's unique place in American life. See School Dist. of Abington Township v. Schempp, 374 U.S. 203, 230, 10 L. Ed. 2d 844, 83 S. Ct. 1560 (1963) (Brennan, J., concurring); Illinois ex rel. McCollum v. Board of Educ., 333 U.S. 203, 216-17, 92 L. Ed. 649, 68 S. Ct. 461 (1948) (Frankfurter, J., concurring); see also Lee v. Weisman, 120 L. Ed. 2d 467, 112 S. Ct. 2649, 2655-59 (1992); see generally Laurence H. Tribe, American Constitutional Law § 14-5, at 1174-75 (2d ed. 1988) (hereinafter "Tribe") ("School is the forum through which basic norms are transmitted to our young, as well as a 'most vital civic institution for the preservation of a democratic system of government.' When government permits a religion to take over part of a public school's facilities during the school day, it strongly implies official endorsement of the particular religion." (quoting Schempp, 374 U.S. at 230 (Brennan, J., concurring))). On the other hand, nonschool-time religious activities at school facilities by student-initiated and student-led groups convey no message of official endorsement, and typically would not offend the Establishment Clause. See Mergens, 496 U.S. at 252 ("A school that permits a student-initiated and student-led religious club to meet after school, just as it permits any other student group to do, does not convey a message of state approval or endorsement of the particular religion.")
; see also Tribe § 14-5, at 1175. During nonschool hours students may voluntarily elect not to participate in student-initiated and student-led religious activities, just as they generally may elect not to participate in other available noncurriculum-related student activities. Coercion is not inherent in this context because students who wish not to participate in a student-initiated and student-led religious activity may freely choose not to. Mergens, 496 U.S. at 251 ("There is little if any risk of official state endorsement or coercion where no formal classroom activities are involved and no school officials actively participate.").
However, this case does not involve endorsement by school authorities of religious activities occurring during the mandated school day or at mandated school events. Nor does it involve coercion of students to participate in a student-initiated and student-led religious activity. Rather, this case raises concerns as to the rights of students not to be excluded from participating, in all respects, in a nonschool-time student-initiated and student-led religious activity based solely upon their religious beliefs. Just as a message of exclusion is conveyed where school officials refuse to let a student religious group use school facilities during nonschool hours, but allow other noncurriculum-related groups to meet during that time, see Mergens, 496 U.S. at 248-50, a message of exclusion is conveyed where school officials permit discrimination against students by allowing--through exemption from a neutral and generally applicable policy--a student religious club to condition eligibility to run for office upon students' religious beliefs. Just as "racial discrimination in education violates a most fundamental national public policy, as well as rights of individuals," Bob Jones Univ. v. United States, 461 U.S. 574, 593, 76 L. Ed. 2d 157, 103 S. Ct. 2017 (1983), so too does discrimination based on religion in the school setting. That students' religious beliefs and expressions may exist within a wholly private sphere, see Lee, 112 S. Ct. at 2656, does not prevent the School District from imposing a facially neutral nondiscrimination policy on all student clubs to protect the rights of all students to be free from discrimination.
By enforcing its policy, the School District does not convey or attempt to convey a message that religion or particular religious beliefs are favored or disfavored, something school officials may not do. See Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 124 L. Ed. 2d 472, 113 S. Ct. 2217, 2226 (1993); Wallace, 472 U.S. at 70 (O'Connor, J., concurring in the judgment). The application of this nondiscrimination policy to a broad spectrum of student clubs, as well as to a broad spectrum of school life, is an important index of the policy's secular effect--elimination and prevention of invidious discrimination in Roslyn's public schools. Contrary to plaintiffs' contentions, see Pls. Mem. at 15, by applying its nondiscrimination policy to all school clubs, the School District does not impermissibly inhibit religion or particular religious beliefs or expression. The policy does not require that students of any particular religious denomination or nondenomination or students holding particular religious beliefs be selected as officers to lead the club, contrary to plaintiffs' contention. Rather, the bible club's members apparently are provided unfettered opportunity to express their religious beliefs and engage in religious activity and may freely choose those students they believe should lead them in prayer and other religious activities. Accordingly, the nondiscrimination policy does not have a principal or primary effect that inhibits religion.
As for the third prong of the Lemon test, plaintiffs contend that the School District made the "structure" of the bible club a "secular issue" by imposing the nondiscrimination policy on the bible club, resulting in excessive entanglement of the school "with church affairs." Pls. Mem. at 14. To the contrary, the nondiscrimination policy as applied to the bible club does not foster an excessive government entanglement with religion; rather it avoids excessive entanglement between and among the School District and student members of the bible club over religious issues. If all students are entitled to be members and hold office in the bible club regardless of religious beliefs, then there would be no reason for the School District to become involved in the members' determination of their officers. Under these circumstances, if a student claims to have been excluded from seeking office in the bible club on the basis of religious beliefs, the School District may be called upon to determine only the basis for the exclusion, not the genuineness, truthfulness or validity of that particular student's or any other students' religious beliefs. By requiring that all students be entitled to run for office regardless of religious beliefs, a student not selected to office would have no basis to challenge the other students' determination. If the nondiscrimination policy is not imposed, then the School District would conceivably be called upon by excluded students to determine if those students' beliefs are sufficient for them to run for office. These circumstances would pose a greater, and unavoidable, risk of excessive entanglement by the School District with religious issues. Clearly, the School District may not serve as an arbiter of the truthfulness or validity of any student's religious beliefs. See DeMarco, 4 F.3d at 170. Accordingly, the Establishment Clause is not violated by the School District imposing the nondiscrimination policy on the bible club.
Plaintiffs also claim that the School District infringed their rights under the Free Exercise Clause. In this respect, plaintiffs assert that the School District has restrained them from meeting and engaging in religious activity, by refusing to "accommodate" their sincerely held religious beliefs that "leadership positions should be held only by those whose sincerely-held religious beliefs reflect the values of, and a regard for, the Bible club's stated purpose pursuant to Article II §§ 1-4 of the constitution, i.e., perpetuating and encouraging Christian ideals." Emily Hsu Aff. P 31; Timothy Hsu Aff. P 9. Plaintiffs argue that the School District has impermissibly imposed preconditions on their exercise of religious beliefs, thereby violating plaintiffs' constitutional rights.
The Supreme Court has long held that the Free Exercise Clause is an absolute prohibition against governmental regulation of religious beliefs. Employment Div., Dep't of Human Resources v. Smith, 494 U.S. 872, 877, 108 L. Ed. 2d 876, 110 S. Ct. 1595 (1990); Bob Jones Univ., 461 U.S. at 603; Braunfeld v. Brown, 366 U.S. 599, 603, 6 L. Ed. 2d 563, 81 S. Ct. 1144 (1961) (citing Cantwell, 310 U.S. at 303). The government may
not compel affirmation of religious belief, see Torcaso v. Watkins, 367 U.S. 488, 6 L. Ed. 2d 982, 81 S. Ct. 1680 (1961), punish the expression of religious doctrines it believes to be false, United States v. Ballard, 322 U.S. 78, 86-88, 88 L. Ed. 1148, 64 S. Ct. 882 (1944), impose special disabilities on the basis of religious views or religious status, see McDaniel v. Paty, 435 U.S. 618, 55 L. Ed. 2d 593, 98 S. Ct. 1322 (1978); Fowler v. Rhode Island, 345 U.S. 67, 69, 97 L. Ed. 828, 73 S. Ct. 526 (1953); cf. Larson v. Valente, 456 U.S. 228, 245, 72 L. Ed. 2d 33, 102 S. Ct. 1673 (1982), or lend its power to one or the other side in controversies over religious authority or dogma, see Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 445-452, 21 L. Ed. 2d 658, 89 S. Ct. 601 (1969); Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 95-119, 97 L. Ed. 120, 73 S. Ct. 143 (1952); Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 708-725, 49 L. Ed. 2d 151, 96 S. Ct. 2372 (1976).
Smith, 494 U.S. at 877; Sherbert v. Verner, 374 U.S. 398, 402, 10 L. Ed. 2d 965, 83 S. Ct. 1790 (1963). Moreover, "it is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege." Sherbert, 374 U.S. at 405; see also Rosenberger, 18 F.3d at 279 ("Unconstitutional conditions, which make enjoyment of a governmental benefit contingent on sacrifice of an independent constitutional right, are prima facie invalid.").
"Whether a condition is unconstitutional depends on whether the government may properly demand sacrifice of the particular right asserted in the context of its exercise." Rosenberger, 18 F.3d at 279.
Plaintiffs assert their free exercise challenge under the recently-enacted RFRA, which provides that all free exercise of religion challenges be guided by the "compelling state interest" test. See 42 U.S.C. § 2000bb-1.
Under this test, the government may justify a law burdening the free exercise of religion if it employs the least restrictive means of achieving a compelling state interest. Id. § 2000bb-1(b); see, e.g., Thomas v. Review Board of Indiana Employment Security Div., 450 U.S. 707, 718, 67 L. Ed. 2d 624, 101 S. Ct. 1425 (1981); Sherbert, 374 U.S. at 406-07.
This Court does not agree with plaintiffs that the School District must "accommodate" their sincerely held religious beliefs by exempting the bible club from its facially neutral nondiscrimination policy. Even assuming that application of the nondiscrimination policy actually burdens plaintiffs' freedom to exercise religious beliefs, a very minimum for exemption from the policy, see Tony & Susan Alamo Found. v. Secretary of Labor, 471 U.S. 290, 303, 85 L. Ed. 2d 278, 105 S. Ct. 1953 (1985), by exempting the club from the policy the School District would not be lifting a regulation merely that burdens plaintiffs' exercise of religion, but one that ensures all other students the right to be free from invidious discrimination in school. The School District' interest, whether arising under federal or New York law, in eliminating and preventing religious discrimination in school certainly may be characterized as "compelling." The School District cannot accommodate the bible club without ignoring the collision between plaintiffs' constitutional rights and the rights of other Roslyn students to be free from discrimination in school, whether in a curriculum or noncurriculum-related school-recognized student activity. Where, as here, discrimination by the bible club on the basis of religion would "impinge upon the rights of other students," Tinker, 393 U.S. at 506, the School District should be permitted to enforce its nondiscrimination policy against all clubs to protect the rights and well-being of all students; a school-recognized club that is permitted to discriminate on the basis of religion likely would be disruptive to the educational mission of the school. It is doubtful that this compelling interest can be achieved by any significantly less restrictive means than an outright ban on discrimination, and plaintiffs suggest none. Significantly, the School District's nondiscrimination policy is unrelated to the suppression of religious beliefs and expression, and does not prevent the bible club's student members from selecting those students they desire to lead the club in prayer or other religious activity. Based on the record presented thus far, it appears that plaintiffs' enjoyment of a governmental benefit (i.e., access to the school's facilities) is not being unconstitutionally conditioned upon plaintiffs' foregoing constitutionally protected religious beliefs or expression. Accordingly, the Free Exercise Clause does not mandate the special treatment to which plaintiffs claim they are entitled.
Plaintiffs assert a claim for violation of their free speech rights. See Amended Complaint PP 69-73. To the extent plaintiffs claim that imposition of the nondiscrimination policy to the bible club violates plaintiffs' free speech rights, this claim is of doubtful merit.
The policy apparently is not aimed at the suppression of speech and does not distinguish prohibited from permitted activity on the basis of content or viewpoint of speech; moreover, the compelling interest it seeks to further-elimination and prevention of invidious discrimination of Roslyn students--likely cannot be achieved by any significantly less restrictive means.
Plaintiffs also claim that the nondiscrimination policy infringes their rights to freedom of association, a separate and distinct right emanating from the First Amendment. See Roberts v. United States Jaycees, 468 U.S. 609, 622-23, 82 L. Ed. 2d 462, 104 S. Ct. 3244 (1984); Healy v. James, 408 U.S. 169, 181, 33 L. Ed. 2d 266, 92 S. Ct. 2338 (1972); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460-61, 2 L. Ed. 2d 1488, 78 S. Ct. 1163 (1958). The right to associate for expressive purposes, however, is not absolute. See Roberts, 468 U.S. at 623. Rather, as the Supreme Court recognized in Roberts:
Infringements on that right may be justified by regulations adopted to serve compelling state interests unrelated to the suppression of ideas that cannot be achieved through means significantly less restrictive of associational freedoms.