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November 9, 1995

TRINITY UNITED METHODIST PARISH, CAROLYN RASMUSSEN and LEE D. GANGAWARE, Plaintiffs, against BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEWBURGH JAMES GINGRICH, MANUEL ALLENDE, ALFRED BLANCO, JOSEPH FOGARTY, M. WILLIAM LAHEY, RONSTON LEWIS, ELAINE MAGWOOD, ROBERT ROTH, RICHARD SANDERS, PAUL FLIPPIN, STEPHEN GIORDANO, and SHEILAH RUBIN, in their official capacities as members of the Board of Education of the City School District of the City of Newburgh, and PHILLIP A. LEAHY, in his official capacity as Superintendent of the Newburgh Enlarged City School District, Defendants.

The opinion of the court was delivered by: PARKER


 Once again this Court is called on to explore the tension between religious practice and public space. Plaintiffs Trinity United Methodist Parish, Carolyn Rasmussen and Lee D. Gangaware (collectively "the Church") bring this action for monetary, declaratory and injunctive relief against the Board of Education of the City School District of the City of Newburgh, the Newburgh Superintendent of Schools and individual school board members (collectively "the School Board" or "the Board") because of the Board's refusal to allow the Church to use the school's facilities during nonschool hours for the performance of a magic show which was to include a religious service. The parties have cross-moved for summary judgment on stipulated facts.


 New York Education Law § 414 ("§ 414") authorizes local boards of education to open school facilities to the community for various educational, civic, recreational, and social purposes. *fn1" The users of the facilities must admit the general public. An admission fee may be charged if the proceeds go to a charitable cause that is not a religious, fraternal or exclusive organization. See N.Y.Educ.Law § 414(1)(d).

 Pursuant to § 414, the School Board, adopted and later revised, a written policy, Policy No. 7510 ("Policy 7510"), for community use of its school facilities. Policy 7510 sets forth the application procedures, in accordance with § 414, and lists ten purposes for which the facilities may be used. Religious uses are not included and, thus, are not permitted. On September 30, 1992, the School Board also adopted, and later revised, Policy No. 7511 ("Policy 7511"), specifically prohibiting the use of school facilities for religious services and instruction. *fn2" (Policy 7510 and Policy 7511 are collectively termed "the Policies.")

 In April 1994, the Amazing Grace Apostolic Faith Church of Newburgh conducted a gospel concert using the school's facilities. Amazing Grace had indicated on its application that it intended to use the facilities for a "gospel concert" and agreed to comply with the policies, rules and regulations of the School Board. The application was approved by the school principal. Amazing Grace advertised the gospel concert on local radio as a "Holy Ghost-Filled Concert." The concert opened with a prayer which was followed with ten gospel songs sung by two church choirs. After the singing, a pastor delivered a sermon and closed with an alter call *fn3" and a prayer. Amazing Grace charged an admission fee. On its application form it indicated that the proceeds were intended to fund the "music ministry of the Amazing Grace Church to outreach community -- Donation to Downing Park, etc."

 In July 1992, Rasmussen, an active member of Trinity United Methodist Parish, on behalf of her pastor and the Parish, requested permission to use the school facilities on November 8, 1992, for a magic show by the "Christian Illusionist," Toby Travis. Travis' performance was in part to be a religious service, including prayer, music, religious instruction and Christian testimony. At the same meeting at which it considered Rasmussen's request, the School Board adopted Policy 7511. On September 30, 1992, the School Board denied Rasmussen's request "due to the fact that the program is religious in nature, and conflicts with the Board of Education Policy."

 In June 1993, Rasmussen made a second, identical, request to use the school facilities for a performance by Travis, which also was to include a religious service with prayer, music, religious instruction and Christian testimony. The School Board again denied the request based on its conclusion that the Church's use of the facilities for religious purposes would violate § 414 and Policy 7511.

 Thereafter, the Church filed this civil rights action seeking declaratory and injunctive relief and damages pursuant to 42 U.S.C. § 1983. The Church moves for summary judgment on all claims in the complaint, contending that § 414 and the Policies: (1) unconstitutionally restrict its right to free speech; (2) violate its right to freedom of association; (3) excessively entangle the School Board in the business and internal affairs of a religious organization in violation of the Establishment Clause; (4) inhibit the free exercise rights of religious organizations and individuals; (5) deny it equal protection; (6) are void for vagueness; and (7) violate the Religious Freedom Restoration Act of 1993, Public Law 103-141, 107 Stat. 1488.

 In its cross-motion, the School Board, in essence, contends that the Policies comport with § 414 and create a limited public forum which constitutionally excludes certain subject matters, including "religious services and religious instruction," and because the Church intends to use the facilities for a religious service, the School Board's denial of its request does not constitute viewpoint discrimination. In addition, the School Board contends that the Policies do not excessively entangle the state with religion in violation of the Establishment Clause, burden the Church's free exercise of religion nor discriminate against the Church on the basis of religion. Finally, the School Board argues that the Policies are not void for vagueness.


 1. Legal Standard for Summary Judgment

 Rule 56(c) of the Federal Rules of Civil Procedure authorizes summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The Court's responsibility is to perform "the threshold inquiry of determining whether there is the need for a trial -- whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." McNeil v. Aguilos, 831 F. Supp. 1079, 1082 (S.D.N.Y. 1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1985)); Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990). In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See McNeil, 831 F. Supp. at 1082 (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962) (per curium) (other citations omitted)). See also Coach Leatherware Co., Inc. v. AnnTaylor, Inc., 933 F.2d 162, 167 (2d Cir. 1991) (citation omitted).

 2. Freedom of Speech

 The First Amendment does not guarantee unlimited access to government-owned property for purposes of expression and, depending on the nature of the property, the government may regulate access. See Cornelius v. NAACP Legal Defense and Ed. Fund, 473 U.S. 788, 799-800, 105 S. Ct. 3439, 3447-48, 87 L. Ed. 2d 567 (1985). Cornelius established a three-prong test for analyzing governmental restrictions on expressive activity. The first prong requires a determination of whether the speech in question is protected by the First Amendment. The second prong requires an identification of the nature of the forum for the speech. The third requires an assessment of whether the government's exclusion of the speech from the particular forum is justified. See Cornelius, 473 U.S. at 797, 105 S. Ct. at 3446.

 Because all agree that religious speech is protected by the First Amendment, see Widmar v. Vincent, 454 U.S. 263, 269, 102 S. Ct. 269, 70 L. Ed. 2d 440 (1981); Otway v. City of New York, 818 F. Supp. 659, 661 (S.D.N.Y. 1993), the real ...

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