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September 24, 1997

FULL GOSPEL TABERNACLE and JORGE VEGA, Plaintiffs, against COMMUNITY SCHOOL DISTRICT 27, COMMUNITY SCHOOL BOARD 27 OF THE CITY OF OZONE PARK, MICHAEL WEITZ, in his official capacity as Principal of Public School 105 Queens, SHEILA MCELHATTEN, in her official capacity Secretary to the Director of Operations, BRENDA ISAACS, in her capacity as Community Superintendent of Community School District 27, KENNETH L. GROVER, in his official capacity as Deputy Superintendent of Community School District 27, JAMES EGAN, DONNA MARIE CALTABIANO, ERNEST BROWN, SHALOM BECKER, JAMES G. ADAMS, RICHARD J. ALTABE, GERALDINE CHAPEY, STEVEN GREENBERG, and JAMES SANDERS, JR., in their official capacity as members of Community School Board 27, and BOARD OF EDUCATION OF THE SCHOOL DISTRICT OF THE CITY OF NEW YORK, Defendants, ATTORNEY GENERAL OF THE STATE OF NEW YORK, Intervenor.

The opinion of the court was delivered by: HAIGHT

 HAIGHT, Senior District Judge:

 Plaintiffs, a church and its pastor, *fn1" seek access after school hours to a public school located in Community School District 27 to conduct religious worship services. Defendants, the Board of Education of the School District of the City of New York ("Board of Education"), Community School District 27, and certain of its officers and employees, have denied plaintiffs access to school facilities on the ground that N.Y. Educ. Law § 414, and the Board of Education's policy implementing that law, prohibit the use of school facilities for religious worship services. Plaintiffs initiated this suit pursuant to 42 U.S.C. § 1983, alleging that the defendants' policy, and the law on which it is based, violate the First and Fourteenth Amendments to the United States Constitution.

 Plaintiffs now move for summary judgment granting them the relief they seek in their complaint, namely, a declaratory judgment and permanent injunction preventing the defendants from denying plaintiffs access to school district facilities because they intend to use those facilities to hold religious worship services. The defendants cross-move for summary judgment, asserting that § 414 is constitutional on its face and as applied to the plaintiffs. Defendants also argue that allowing the plaintiffs to use public school facilities for religious worship services would violate the Establishment Clause of the First Amendment.


 Under Fed. R. Civ. P. 56(c), the moving party is entitled to 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 a judgment as a matter of law." In considering such a motion, "a district judge must view the evidence in the light most favorable to the non-moving party and must draw all inferences in favor of that party." Wernick v. Federal Reserve Bank of New York, 91 F.3d 379, 382 (2d Cir. 1996). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Accordingly, summary judgment is warranted where, "after adequate time for discovery . . . [the nonmoving party] fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).


 The following facts are undisputed.

 Full Gospel Tabernacle ("Full Gospel") is a Christian church currently meeting in a building owned by the church in Far Rockaway, New York. In late April 1994, Full Gospel determined that an alternative venue was needed for Sunday worship services to accommodate the church's growing membership. Accordingly, on May 6, 1994, Reverend Robert Castro, the pastor of Full Gospel Tabernacle, filed an application with Public School 105 Queens ("P.S. 105"), a school located within Community School District 27 ("CSD 27"), to rent the school's auditorium, classrooms, and cafeteria for each Sunday in June. Kenneth Grover, Deputy Superintendent of CSD 27, denied the application on May 16, 1994, citing Board of Education Standard Operating Procedure 5.9 (hereinafter referred to as "SOP 5.9"), which provides in part that "no outside organization or group may be allowed to conduct religious services or religious instruction on school premises after school." *fn2"

 Reverend Castro applied again in late May 1994 to use the facilities of P.S. 105 every Sunday in July. Again his application was denied. Full Gospel then retained legal counsel, and filed the instant action on November 2, 1994.

 Through discovery, plaintiffs learned that several other churches in the area had been allowed to conduct religious activities in school district buildings after school hours pursuant to permits issued by CSD 27. *fn3"

 Reverend Speller testified that she used the school facilities to conduct the worship services of the Deliverance Temple Church. Speller Dep. at 26-27. On Sundays she would preach, teach the Bible to her congregation and engage in prayer. Speller Dep. at 7-8. On weekday evenings the facilities were used for a variety of activities, including a religious play, inspirational music and dance, and Bible discussion groups. Speller Dep. at 9-12. In November 1994, Reverend Speller was told she could no longer use the school's facilities because it had come to the attention of school officials that she was conducting religious services on the premises. Speller Dep. at 23.

 In June and July 1994, CSD 27 granted Lisa and Rubin Mitchell, pastors of the Jesus Family Fellowship, permits to use the auditorium of Junior High School 198 every Tuesday and Sunday in July and August 1994. Reverend Lisa Mitchell described the five services they held at JHS 198 as follows:

We would come in and have what's called a group prayer, congregational prayer. Then we would go into praise and worship, sing different praise and worship songs accompanied by music. From there, Reverend Mitchell, he would get up and deliver the message, the service for that evening.

 Mitchell Dep. at 12. Following Reverend Mr. Mitchell's sermon, the Reverends would engage in an "altar call," where they would "invite someone to receive the Lord as their Savior." Mitchell Dep. at 12. The service would then conclude with a closing prayer. Mitchell Dep. at 12. On Sundays, the Mitchells would also conduct religious instruction for children. Mitchell Dep. at 15.

 The Mitchells testified that they informed McElhatten at the time they applied for the permit that they intended to use the school facilities for church services. Mitchell Dep. at 41. According to their testimony, McElhatten granted them a permit anyway, after concluding that the Mitchells' intended purpose fell within the second sentence of SOP 5.9, which allows use of school facilities for the "purpose of discussing religious material or material which contains a religious viewpoint or for distributing such material . . . ." Mitchell Dep. at 68. However, on July 21, 1994, Kenneth Grover, deputy superintendent of CSD 27, informed the Mitchells that their permit was rescinded effective immediately, citing SOP 5.9. When the Mitchells demanded an explanation, they were told that McElhatten had issued the permit in error. Mitchell Dep. 55-62.

 The district does not deny that these incidents occurred. However, it contends that these permits were erroneously approved due to flaws in the permit application process which have been remedied since a new ...

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