If the school principal or custodian becomes aware that the policy has been violated despite these precautions, they are to report any violations to the district office and send a warning letter to the organization.
Significantly, since these corrective measures were taken, no permits have been issued for religious worship services or instruction, and requests to use school facilities for such activity has been denied. Accordingly, unlike the defendants in Travis, defendants in this case "took steps to prevent a similar mistake in the future" once they learned that the policy had been violated. Moreover, in contrast to the corrective measures evaluated unfavorably by Judge Parker in Trinity, see 907 F. Supp. at 716, defendants' steps in this case appear to be effective.
In sum, the defendants have not opened a limited public forum for religious worship services by virtue of the fact that permits were granted on two prior occasions for such use, in light of the facts that these permits were granted by an individual who failed to properly implement the district's clear policy against such use, and the district promptly corrected these errors and took effective steps to prevent such a mistake in the future.
Since the Second Circuit has already held that SOP 5.9 is a reasonable regulation, see Bronx Household of Faith, 1997 WL 567035, at *7, plaintiffs' exclusion from school facilities was therefore constitutional, as long as the exclusion of religious worship services is viewpoint neutral.
Plaintiffs argue that the exclusion of religious services is unconstitutional viewpoint discrimination, regardless of forum designation. Plaintiffs point out that § 414 allows "instruction in any branch of education, learning or the arts," "social, civic and recreational meetings . . . and other uses pertaining to the welfare of the community." Plaintiffs contend that religious worship services and instruction is speech within these categories from a religious, rather than secular, perspective. As such, according to plaintiffs, the exclusion of religious worship services and instruction constitutes unconstitutional viewpoint discrimination.
In support of their argument, plaintiffs rely on Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 124 L. Ed. 2d 352, 113 S. Ct. 2141 (1993). In that case, the defendant school district, on the basis of § 414, denied the plaintiff a permit to use school facilities after school hours to show a six-part film on parenting from a Christian perspective. 508 U.S at 388-89. The district court and the court of appeals both rejected the plaintiff's claims, holding that the school property was a limited public forum from which activities with a religious purpose had been constitutionally excluded. Id. at 389-90. The Supreme Court reversed, holding that it was unconstitutional viewpoint discrimination to allow school property to be used for the expression of views on family issues and child-rearing, without also allowing the property to be used for the expression of a religious viewpoint on the same subjects. Id. at 394 ("The film series involved here no doubt dealt with a subject otherwise permissible . . ., and it exhibition was denied solely because the series dealt with the subject from a religious standpoint."). Plaintiffs argue that this holding applies equally to the case at bar.
The distinction between content and viewpoint is "not a precise one." Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 115 S. Ct. 2510, 2517, 132 L. Ed. 2d 700 (1995) (university's denial of printing cost funding to student newspaper with Christian editorial viewpoint condemned as viewpoint discrimination). In the case at bar, although SOP 5.9 prohibits the use of school facilities for religious worship services, it allows "the use of school premises by outside organizations or groups after school for the purpose of discussing religious material or material which contains religious viewpoint or for distributing such material." (emphasis added). In Bronx Household of Faith, 1997 WL 567035, at *7-8, the Second Circuit held that this distinction is tenable and "not difficult for school authorities to make," id. at *8, and that the exclusion of religious worship services does not amount to unconstitutional viewpoint discrimination. I am bound by this very recent appellate decision.
Since the exclusion of religious worship services is reasonable in light of the purposes served by the forum and viewpoint neutral, see Bronx Household of Faith, 1997 WL 567035, at *8, plaintiffs' free speech rights were not violated by the defendants' denial of their permit application.
Plaintiffs also assert claims under the Free Exercise and Establishment Clauses of the First Amendment, as well as the Equal Protection Clause of the Fourteenth Amendment. Identical claims were rejected by the Second Circuit in Bronx Household of Faith, 1997 WL 567035, at *8-9. Plaintiffs also assert a claim under the Religious Freedom Restoration Act of 1993. However, that claim must be dismissed with prejudice in light of the Supreme Court's determination in City of Boerne v. Flores, U.S. , 138 L. Ed. 2d 624, 117 S. Ct. 2157, 2172 (1997), that the Religious Freedom Restoration Act is unconstitutional. See Bronx Household of Faith, 1997 WL 567035, at *10.
For the foregoing reasons, plaintiffs' motion for summary judgment is denied and defendants' cross-motion for summary judgment is granted. Plaintiffs' earlier motion for a preliminary injunction is also denied for the reasons state above.
The Clerk of the Court is directed to dismiss the complaint with prejudice.
It is SO ORDERED.
Dated: New York, New York
September 24, 1997
CHARLES S. HAIGHT, JR.