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BRONX HOUSEHOLD v. THE BD. OF ED. OF CITY OF N.Y.

June 26, 2002

THE BRONX HOUSEHOLD OF FAITH, ROBERT HALL AND JACK ROBERTS, PLAINTIFFS
V.
THE BOARD OF EDUCATION OF THE CITY OF NEW YORK AND COMMUNITY SCHOOL DISTRICT NO. 10, DEFENDANTS.



The opinion of the court was delivered by: Loretta A. Preska, United States District Judge

OPINION

Plaintiffs The Bronx Household of Faith, Robert Hall and Jack Roberts bring this action against defendants Board of Education of the City of New York and Community School District No. 10 ("School District") alleging violations of the Free Exercise, Free Speech, Free Assembly and Establishment Clauses of the First Amendment, the Equal Protection Clause and Sections 3, 8 and 11 of Article I of the New York Constitution. Plaintiffs move for a preliminary injunction to prevent defendants from denying plaintiffs' application to rent space in Public School M.S. 206B, Anne Cross Merseau Middle School ("M.S. 206B"), for Sunday morning meetings that include religious worship. For the reasons set forth below, the motion for a preliminary injunction is granted.

BACKGROUND

Bronx Household — District Court

In 1995, plaintiffs brought an action in this Court challenging the School District's denial of plaintiffs' request to rent space in M.S. 206B in September 1994 for Sunday morning meetings that include religious worship. Bronx Household of Faith v. Cmty. Sch. Dist. No. 10, No. 95 Civ. 5501 (LAP), 1996 WL 700915, at *1 (S.D.N.Y. Dec. 5, 1996). The School District's denial was based on its "Standard Operating Procedures: Topic 5: Regulations Governing the Extended Use of School Facilities" ("SOP") and New York Education Law § 414 (McKinney's 1995), both of which prohibited rental of school property for the purpose of religious worship. Id. Specifically, section 5.9 of the SOP provided:

No outside organization or group may be allowed to conduct religious services or religious instruction on school premises after school. However, the use of school premises by outside organizations or groups after school for the purpose of discussing religious material or material which contains a religious viewpoint or for distributing such material is permissible.

Id. New York Education Law § 414 provided that school facilities could be used for meetings, with the following exception:

[S]uch use shall not be permitted if such meeting, entertainments and occasions are under the exclusive control, and the said proceeds are to be applied for the benefit of a society, association or organization of a religious sect or denomination, or of a fraternal, secret or exclusive society or organization. . . .

Id. at *2.

In considering plaintiffs' free speech claim, I found that the School District had created a limited public forum and that its regulations "constitute[d] reasonable regulations of expression related to the legitimate government concern of preserving and prioritizing access to the Middle School primarily for educational purposes and, secondarily, for nonexclusive public and community activities." Id. at *6. I denied plaintiffs' motion for summary judgment and granted defendants' cross-motion for summary judgment. Id.

Bronx Household — Court of Appeals

The Court of Appeals affirmed the judgment, see 127 F.3d 207 (2d Cir. 1997), and the Supreme Court denied certiorari, see 523 U.S. 1074 (1998). In connection with its holding that M.S. 206B was "not an open public forum as that term has been defined by the Supreme Court," Bronx Household, 127 F.3d at 213, the Court of Appeals noted the distinction made by the Supreme Court in, inter alia, Rosenberger v. Rector & Visitors of the Univ. of Virqinia, 515 U.S. 819 (1995), and Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993), "between discrimination against speech because of its subject matter, considered permissible to preserve the purposes of the limited forum, and viewpoint discrimination, considered impermissible if directed against speech within the limitations of the forum." Bronx Household, 127 E.3d at 213 (citations omitted). The Court found that:

SOP 5.9 preserves that distinction by prohibiting religious worship and religious instruction by outside groups, a prohibition that state authorities consider necessary to preserve the purposes of the limited public school forum, and by specifically permitting religious viewpoint speech in relation to matters for which the public school forum is open.

Id. The Court found the regulations to be reasonable, ("[w]e think that it is reasonable in this case for a state and a school district to adopt legislation and regulations denying a church permission to use school premises for regular religious worship" (id. at 214)), and the regulations to be viewpoint neutral, (id. at 215). In so finding, the Court noted that:

the regulation in question specifically permits any and all speech from a religious viewpoint. What it does not permit is religious worship services.

Id. In elaborating on the distinction, the Court observed that:

[t]he purposes for which the schools in District #10 have been opened to outside organizations encompass a wide variety of civic and social uses, and any speech conducted in connection with those uses may be bottomed on a religious viewpoint. Worship and religious instruction are forms of speech and cannot be prohibited in an open forum such as a public university. See Widmar [v. Vincent], 454 U.S. [263,] 269 n. 6, 102 S.Ct. [269,] 274 n. 6 [1981]. Indeed, religious worship services may well be considered the ultimate in speech from a religious viewpoint in an open forum. But the question is whether a distinction can be drawn between it and other forms of speech from a religious viewpoint that District #10 has elected to allow in the limited forum of a public middle school. We think it can.

Id. at 214-15. Indeed, the Court of Appeals was of the opinion that the "distinction between [discussion of secular matters from a religious viewpoint] on one hand, and religious services and instruction on the other, is not difficult for school authorities to make." Id. at 215.

Good News Club — Court of Appeals

Approximately two and one-half years after its decision in Bronx Household, the Court of Appeals decided The Good News Club v. Milford Central School, 202 F.3d 502 (2d Cir. 2000), rev'd, 533 U.S. 98 (2001), which affirmed the District Court's grant of summary judgment to a defendant school district. There, The Good News Club ("Good News Club" or the "Club"), "a community-based Christian youth organization open to children between the ages of six and twelve," id. at 504, sought to use school facilities for after-school meetings of children with parental permission to "have `a fun time of singing songs, hearing [a] Bible lesson and memorizing scripture.'" Id. at 507. The Milford Central School District ("Milford") had adopted a policy in accordance with New York Education Law § 414 (the "Community Use Policy"). Id. at 504. The Community Use Policy stated that residents of the district could use school facilities 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." Id. The Community Use Policy, however, also indicated that:

[s]chool 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. The parties agreed that the school district had opened a limited public forum. Id. at 509. Finding that the proposed use was "the equivalent of religious worship . . . rather than the expression of religious views or values on a secular subject matter," the Interim Superintendent of Schools in Milford denied the Club's request, id. at 507, and the District Court upheld that denial, id. at 508.

On appeal, the Court of Appeals reviewed the activities proposed by the Club. It noted that as children arrived for the meetings, those who recalled and recited a "memory verse" from the previous meeting were rewarded with a prize. Id. at 504. The meeting officially began with a prayer recited by a minister, and the group sang The Good News theme song, which refers to Christ. Id. at 504-05. The next portion of the meeting

involves a "moral or value" lesson centered around a verse from either the Old or the New Testament and its teaching. To learn the "memory verse" for the lesson, the Club members play games that focus on repetition of the verse. Next, the children are told a Bible story that emphasizes the same moral value that is represented in the day's memory verse. The story concludes with a "challenge and invitation" segment, which challenges the children to live by the value taught in the day's lesson through trust in God and Jesus Christ. Depending on the elapsed time, when the story is concluded, the group leader may ask the children questions about the story or play a game that emphasizes the teaching in the story. The group may also sing a song that relates to the story.

Id. at 505.

In arguing that Milford's application of the Community Use Policy was not viewpoint neutral, the Club noted that just like the Boy Scouts, Girl Scouts and 4-H Clubs, it taught moral values and argued that it was excluded from school facilities because it sought to teach moral values from a Christian viewpoint. Id. at 509. The majority found that the Club's argument that the restriction was unreasonable was foreclosed by its holding in Bronx Household. See id. ("[I]t is a proper state function to decide the extent to which church and school should be separated in the context of the use of school premises." (quoting Bronx Household, 127 F.3d at 214)). More specifically, the majority responded that "[t]hough [the Club's] teachings may involve secular values such as obedience or resisting jealousy, the Christian viewpoint, as espoused by Reverend Fournier [,pastor of Milford Center Community Bible Church, husband of one of the plaintiffs and father of another,] contains an additional layer:

[T]hese morals or these values are senseless without Christ, that's to the children who know Christ as Savior, we would say, you know you cannot be jealous because you know you have the strength of God. To the children who do not know Christ, we would say, you need Christ as your Lord and Savior so that you might overcome these, you know, feelings of jealousy."

Id. at 509-10 (footnote omitted)

Thus, the majority concluded that the Club "is doing something other than simply teaching moral values. . . . [It is] focused on teaching children how to cultivate their relationship with God through Jesus Christ. Under even the most restrictive and archaic definitions of religion, such subject matter is quintessentially religious." Id. at 510. The majority observed that, as had been noted in the Court's opinion in Bronx Household, it was not difficult to discern that "the activities of the Club fall clearly on the side of religious instruction and prayer," id., and that the Club's activities could be readily compared to "religious worship," id. The majority rejected the Club's argument that its activities were akin to the Boy Scouts', Girl Scouts' and 4-H Clubs' teaching of moral values, albeit from a Christian viewpoint. It found, for example, that:

[w]hile the Boy Scouts teach reverence and a duty to God generally, this teaching is incidental to the main purpose of the organization, which is personal growth and development of leadership skills. Moreover, there is nothing in the record to indicate that the Boy Scouts require any particular means of demonstrating reverence and duty to God. Similarly, the Girl Scouts vow to try . . . [t]o serve God and [their] country."

Id. at 511 (footnote omitted). Accordingly, the majority found that the school excluded the Club on the basis of "content, not viewpoint." Id.

In dissent, Judge Jacobs criticized the majority's finding that the school district excluded the Club on the basis of content, not viewpoint. He wrote:

The majority rules against Good News nevertheless on the basis of two complementary distinctions. First, although the school district would be obliged to accept "an organization seeking to teach morals from a religious perspective," the school district is not obliged to accept a "religious youth organization that proposed religious instruction and prayer." See Maj. Op. at 508. Second, the majority emphasizes that the Club discusses "religious material through religious instruction and prayer" rather than "secular subjects from a religious viewpoint." See Maj. Op. at 510 (citing Bronx Household of Faith, 127 F.3d at 215).
On the basis of these two distinctions, the majority concludes that the Club's rejection was based solely upon the subject matter of its meetings and not upon its religious viewpoint. In my view, when the subject matter is morals and character, it is guixotic to attempt a distinction between religious viewpoints and religious subject matters.

Id. at 512 (emphasis added) (Jacobs, J., dissenting). Judge Jacobs emphasized that "[t]he distinction between content discrimination and viewpoint discrimination is elusive and subtle," id. at 514, citing Rosenberger, 515 U.S. at 829 ("Viewpoint discrimination is . . . an egregious form of content discrimination."), and Good News/Good Sports Club v. School District, 28 F.3d 1501, 1506-07 (8th Cir. 1994) ("[T]he Supreme Court has `refused to cabin religious speech into a separate excludible speech category; rather, the Court [has] adopted a more expansive view, recognizing that a religious perspective can constitute a separate viewpoint on a wide variety of seemingly secular subject matter.'"). He then offered his analysis:

The school district allows use of its facilities by certain groups that focus on "moral development" of young people. The majority argues that the activities of the Club are "quintessentially religious," while the other groups deal only with the "secular subject of morality." Maj. Op. at 510. The fallacy of this distinction is that it treats morality as a subject that is secular by nature, which of course it may be or not, depending on one's point of view. Discussion of morals and character from purely secular viewpoints of idealism, culture or general uplift will often appear secular, while discussion of the same issues from a religious viewpoint will often appear essentially — quintessentially — religious. "There is no indication when `singing hymns, reading scripture, and teaching biblical principles' cease to be `singing, teaching, and reading' — all apparently forms of `speech,' despite their religious subject matter — and become unprotected `worship.'" Widmar v. Vincent, 454 U.S. 263, 269 n. 6, 102 S.Ct. 269, 274 n. 6, 70 L.Ed.2d 440 (1981) (internal citation omitted). Because the Club's focus appears to be on teaching lessons for the living of a morally fit life, and not on worship, I believe that the Club's message is in fact the "teach[ing of] morals from a religious perspective," Maj. Op. at 508.
Even if one could not say whether the Club's message conveyed religious content or religious viewpoints on otherwise-permissible content, we should err on the side of free speech. The concerns supporting free speech greatly outweigh those supporting regulation of the limited public forum.
Whenever public officials, in executing the school's access policy, evaluate private speech "to discern [its] underlying philosophic assumptions respecting religious theory and belief," the result is "a denial of the right of free speech." Rosenberger, 515 U.S. at 845, 115 S.Ct. at 2525.

Id. at 515 (Jacobs, J., dissenting).

Good News Club — Supreme Court

The Supreme Court granted certiorari in Good News Club to resolve the "conflict among the Courts of Appeals on the question whether speech can be excluded from a limited public forum on the basis of the religious nature of the speech." 533 U.S. at 105. In listing the cases evidencing the conflict, the Court included the Court of Appeals' opinion in Bronx Household, 127 F.3d 207, which it characterized as "concluding that a ban on religious services and instruction in the limited public forum was constitutional," for comparison to the Eighth Circuit's opinion in Good News/Good Sports Club, 28 F.3d 1501. Good News Club, 533 U.S. at 105-06. Ultimately, the Court reversed the Court of Appeals' holding in Good News Club (thus casting doubt on the Court of Appeals' opinion in Bronx Household).

In analyzing the Club's free speech claim, the Court accepted the parties' agreement that Milford had created a limited public forum. Justice Thomas, writing for the majority, noted that Milford had opened its facilities to events "pertaining to the welfare of the community," including "the development of character and morals from a religious perspective." Id. at 108. But the Court disagreed with the Court of Appeals' belief "that its characterization of the Club's activities as religious in nature warranted treating the Club's activities as different in kind from the other activities permitted by the school." Id. at 110-11. Justice Thomas wrote:

We disagree that something that is "quintessentially religious" or "decidedly religious in nature" cannot also be characterized properly as the teaching of morals and character development from a particular viewpoint. See 202 F.3d, at 512 (Jacobs, J., dissenting) ("[W]hen the subject matter is morals and character, it is quixotic to attempt a distinction between religious viewpoints and religious subject matters") What matters for purposes of the Free Speech Clause is that we can see no logical difference in kind between the invocation of Christianity by the Club and the invocation of teamwork, loyalty, or patriotism by other associations to provide a foundation for their lessons. It is apparent that the unstated principle of the Court of Appeals' reasoning is its conclusion that any time religious instruction and prayer are used to discuss morals and character, the discussion is simply not a "pure" discussion of those issues. According to the Court of Appeals, reliance on Christian principles taints moral and character instruction in a way that other foundations for thought or viewpoints do not. We, however, have never reached such a conclusion. Instead, we reaffirm our holdings in Lamb's Chapel and Rosenberger that speech discussing otherwise permissible subjects cannot be excluded from a limited public forum on the ground that the subject is discussed from a religious viewpoint. Thus, we conclude that Milford's exclusion of the Club from use of the school, pursuant to its community use policy, constitutes impermissible viewpoint discrimination.

Id. at 111.

Of particular relevance here is the footnote following that ...


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