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October 23, 1998


The opinion of the court was delivered by: MCAVOY



 Plaintiffs Good News Club ("Good News" or the "Club"), Andrea Fournier, and Darleen Fournier brought this action pursuant to 42 U.S.C. § 1983, alleging, inter alia, that defendant Milford Central School ("MCS" or "defendant") violated their free speech rights under the First Amendment to the United States Constitution by denying them the use of the MCS cafeteria. On April 14, 1997, this Court preliminarily enjoined defendant from denying plaintiffs use of the cafeteria during non-school hours. Defendant now moves for summary judgment dismissing the Complaint. Plaintiffs cross-move for summary judgment on their free speech and equal protection claims.

 I. Background

 A. Facts

 Good News is an unincorporated community-based Christian youth organization open to children between the ages of six and twelve. Although the Club is nondenominational, its stated purpose is to instruct children in family values and morals from a Christian perspective. The Club meets weekly for one hour and a typical meeting includes an opening prayer, singing of Christian songs, memorization, recital, and discussion of Biblical verses and scripture, and a closing prayer.

 The Club is affiliated with Child Evangelism Fellowship ("CEF"), a Christian missionary organization that oversees and provides support to the Good News clubs throughout the country. *fn1" This support includes providing teaching materials, prayer booklets (the "Daily Bread"), and training, in return for which the Clubs pay a fee. Additionally, CEF provides "prayer support" for the instructors of the various Good News clubs. Defendant Darleen Fournier is in charge of the Club, defendant Andrea Fournier is a Good News member, and Steven Fourier, not named in the above matter, is a pastor and instructor at Good News.

 The Club previously met at the Milford Center Community Bible Church where Steven Fournier was pastor. Children were transported to these meetings by either a bus provided by MCS, or privately by parents. After MCS decided to no longer provide transportation, plaintiffs sought use of MCS's facilities to hold their meetings. On September 22, 1996, plaintiffs submitted a formal request to use the MCS cafeteria from 3 p.m. to 4 p.m. to conduct its weekly meetings. On October 3, 1996, plaintiffs' request was formally denied in a letter by Superintendent Robert McGruder ("McGruder") on the grounds that the Milford Central School District (the "District") believed that the Club's activities constituted religious worship and instruction, which is prohibited under section 414 of the New York Education Law *fn2" and MCS policy. *fn3"

 Pursuant to section 414, the MCS District Board of Education adopted the "Community Use of School Facilities Policy" ("Community Use Policy") on August 26, 1992. See Def. Ex. 3. The Community Use Policy provides that school facilities may be used by district residents for "holding social, civic and recreational meetings and entertainment events and other uses pertaining to the welfare of the community, provided that such uses shall be nonexclusive and shall be open to the general public" and consistent with all applicable state laws. Id. The policy further provides that such use must be for nonreligious purposes:

School premises shall not be used by any individual or organization for religious purposes. Those individuals and/or organizations wishing to use school facilities and/or grounds under this policy shall indicate on a Certificate Regarding Use of School Premises form provided by the District that any intended use of school premises is in accordance with this policy.

 Id. at 1.

 The Community Use Policy lists acceptable and prohibited uses for school facilities, essentially iterating the acceptable and non-acceptable uses provided in New York Education Law § 414. See supra note 1.

 B. Procedural History

 Plaintiffs filed their Complaint on March 7, 1997. The Complaint contains claims under 42 U.S.C. § 1983 for violations of the plaintiffs' free speech rights under the First Amendment and equal protection rights under the Fourteenth Amendment; and a claim under the Religious Freedom Restoration Act of 1993 ("RFRA"), 42 U.S.C. § 2000bb et seq.4 Plaintiffs sought injunctive relief, damages, and attorneys' fees.

 Plaintiffs moved for a preliminary injunction pursuant to Fed. R. Civ. P. 65(a), restraining and enjoining defendants from enforcing a ban on plaintiffs' First Amendment right to utilize the school facilities that have, by policy and practice, been made available for public use to other organizations during non-school hours. This Court granted the motion in a bench decision rendered April 14, 1997. Citing to the holdings in Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 124 L. Ed. 2d 352, 113 S. Ct. 2141 (1993), and Rosenberger v. Rector and Visitors of the Univ. of Virginia, 515 U.S. 819, 132 L. Ed. 2d 700, 115 S. Ct. 2510 (1995), this Court noted

There is no question that the defendant can limit the use of its facilities, and that it need not permit even those uses provided for in § 414 of New York Education Law. However, once it established itself as a limited forum by permitting certain categories of outside uses of its facilities, the State, in the person of the defendant, must respect the lawful boundaries it has itself set.

 April 14, 1997 Bench Decision (internal citations omitted). With respect to the question of whether plaintiffs met their burden to show sufficiently serious questions going to the merits to present a fair ground for litigation, this Court ruled

In the instant case, the central dispute relates to each sides' understanding of the plaintiff [Good News Club's] meetings. Is the content religious, as alleged by the defendant? Or is the content non-religious, but presented from a religious viewpoint, as alleged by the plaintiffs? . . . . Clearly, this issue presents fair ground for litigation, as it can only be resolved after 'full and complete proof of the nature' of [Good News Club's] programming.

 Id. (internal citations omitted).

 Defendant now moves for summary judgment dismissing the Complaint. Plaintiffs cross-move for summary judgment on their free speech and equal protection claims. *fn5"


 A. The Standard for Summary Judgment

 The Court will now address defendant's motion for summary judgment.

 The standard for summary judgment is well-settled. Under Fed. R. Civ. P. 56(c), if there is "no genuine issue as to any material fact . . . the moving party is entitled to a judgment as a matter of law . . . where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); see also Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 86 (1996). The moving party bears the initial burden of "informing the . . . court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quoting FED. R. CIV. P. 56(c)). The initial burden is to demonstrate "that there is an absence of evidence to support the nonmoving party's case." Id. at 325.

 Once the moving party has met its burden, the non-moving party must come forward with specific facts showing that there is a genuine issue for trial. See Celotex Corp., 477 U.S. at 322; Matsushita, 475 U.S. at 585-86. A dispute regarding a material fact is genuine if a reasonable jury could return a verdict for the non-moving party; that is, whether the non-movant's case, if proved at trial, would be sufficient to survive a motion for judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). When reasonable minds, however, could not differ as to the import of the evidence, then summary judgment is proper. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849, 116 L. Ed. 2d 117, 112 S. Ct. 152 (1991).

 Although the trial court must resolve all ambiguities and draw all inferences in favor of that party against whom summary judgment is sought, Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989); Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985) cert. denied, 484 U.S. 918, 98 L. Ed. 2d 226, 108 S. Ct. 269 (1987), the motion will not be defeated by a non-movant who raises merely a "metaphysical doubt" concerning the facts or who only offers conjecture or surmise. Delaware & H.R. Co. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir.1990), cert. denied, 500 U.S. 928, 114 L. Ed. 2d 125, 111 S. Ct. 2041 (1991) (quoting Matsushita, 475 U.S. at 586); see also Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990). Indeed, the nonmoving party's opposition may not rest on mere allegations or denials of the moving party's pleading, but "must set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e).

 It is with these considerations in mind that the Court addresses defendant's motion for summary judgment.

 B. The Freedom of Speech Claim

 1. Nature of the Forum

 The protections afforded by the First Amendment do not guarantee unlimited access to public property. A school district, like any other property owner, may regulate access to property under its control. See Lamb's Chapel, 508 U.S. at 390; Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 U.S. 788, 800, 87 L. Ed. 2d 567, 105 S. Ct. 3439 (1985). In determining the extent to which the government may limit access to its property, the Supreme Court has adopted a forum analysis that balances the government's interest in limiting the use of its property against the interests of those who wish to use the property for expressive activity. See Cornelius, 473 U.S. at 800; Travis v. Owego-Apalachin Sch. Dist., 927 F.2d 688, 691 (2d Cir. 1991). Accordingly, the right of access to public property depends upon the character of the property at issue. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 44, 74 L. Ed. 2d 794, 103 S. Ct. 948 (1983); Bronx Household, 127 F.3d at 211 ("Freedom to speak on government property is largely dependent on the nature of the forum in which the speech is delivered."). To this end, the Supreme Court has characterized public property for First Amendment purposes in three ways: (1) the traditional public forum; (2) the designated or limited public forum; and (3) the nonpublic forum. See Cornelius, 473 U.S. at 802; Bronx Household, 127 F.3d at 211.

 The Court's first task is to determine the nature of the forum created by the District in MCS's facilities. This requires an examination of the state law and the school policies governing permitted uses of school facilities and whether the District previously opened its property "to entities of a similar character and for the discussion of topics of similar nature." Travis v. Owego-Apalachin Sch. Dist., 1990 U.S. Dist. ...

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