Federal district court allows church to hold religious services in New York City public school

Bronx Household of Faith v. Board of Educ. of City of New York, 10-8598 (S.D. N.Y. Feb. 24, 2012)

Abstract: A federal district court in New York has granted a church a preliminary injunction allowing it to hold its religious worship services in a New York City public school on Sundays. The court concluded that the church had demonstrated irreparable harm and a likelihood of success on the merits of its First Amendment Free Exercise Clause and Establishment Clause claims. It also found that the church’s claims were not precluded by the doctrines of law of the case, claim preclusion, and issue preclusion.

Facts/Issues: Beginning in 1994, the Bronx Household of Faith (BHF) applied on several occasions to use space at a New York City Board of Education (NYCBOE) school to hold its Sunday morning “church services.” Each request was rejected, and BHF brought suit seeking to overturn NYCBOE’s policy prohibiting their use of a school for services. After the Second Circuit panel in Bronx Household III lifted a permanent injunction barring NYCBOE from enforcing its revised facilities use policy that prohibits outside groups from using school facilities for religious worship, the case was remanded to the federal district court. The district court granted BHF’s motion for summary judgment and issued a permanent injunction barring NYCBOE from enforcing its policy prohibiting the use of school facilities for “religious worship services.”

In a 2-1 split, a three-judge panel of the U.S. Court of Appeals for the Second Circuit ruled in June 2011 that NYCBOE’s policy prohibiting the use of school facilities for “religious worship services” does not violate the First Amendment’s Free Speech Clause. Having determined that NYCBOE had created a limited public forum, the majority concluded the policy satisfied the standard that restrictions imposed by the forum be viewpoint neutral and reasonable in light of the purpose served by the forum.

The majority’s analysis only focused on that portion of the policy prohibiting “religious worship services,” not the broader prohibition on use of a school as a “house of worship,” because the rejected application had specifically requested use of an elementary school for “Christian worship services.” It found that the prohibition was limited to a type of activity, which does not involve discrimination against any viewpoint. It stressed that the policy ”does not exclude religious groups from using schools for prayer, singing hymns, religious instruction, expression of religious devotion, or the discussion of issues from a religious point of view.”

The majority found the prohibition was “objectively reasonable” because of NYCBOE’s concern that the use of its schools “… for religious worship services, conducted primarily on Sunday when the schools are most available to outside groups, exposes the City to a substantial risk of being found to have violated the Establishment Clause.”  The panel acknowledged that U.S. Supreme Court precedent did not “… compel a decision one way or the other on these facts” and further “… the Supreme  Court [has not] given any reliable indication of how it will rule if and when it confronts these facts.”

The Second Circuit subsequently denied BHF’s motion for rehearing. BHF then filed a petition for certiorari with the U.S. Supreme Court asking it to review the Second Circuit panel’s decision. The Supreme Court rejected BHF’s petition. The case reverted to the district court, where BHF sought a preliminary injunction based on the claim left unresolved by the Second Circuit, or revived by the Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 132 S. Ct. 694 (2012). After oral argument, the court issued a temporary restraining order (TRO) allowing BHF to continue to hold its services in the public school. It followed with a written opinion applicable to both the TRO and the preliminary injunction.

Ruling/Rationale: The district court granted BHF’s motion for a preliminary injunction to maintain the status quo of holding worship services on Sundays in the public school. Because this motion was to preserve the status quo, unlike BHF’s previous motion for a preliminary injunction which sought to overturn the status quo at that time, the court applied the lower burden of proof rather than the higher burden of proof which requires showing a substantial likelihood of success on the merits. It noted that BHF had still satisfied that higher burden.

The district court stated that in order for BHF to obtain a preliminary injunction, it must establish (1) irreparable harm; and (2) a likelihood of success on the merits.

Free Exercise

The district court agreed with BHF that if NYCBOE were allowed to enforce its policy of prohibiting worship services in its schools, the financial burden on BHF to find commercial space to lease for services would force it “to reduce and/or eliminate ministries to [the Church’s] members and . . . local community.” Because enforcement of the policy would implicate BHF’s First Amendment rights, “the irreparable nature of the harm may be presumed.” The court stated:

Based on these principles and the Court’s determination that [BHF] likely will prove an actual violation of their First Amendment free exercise rights—”rights that are the bedrock of our liberties,” — BHF have demonstrated that they will suffer irreparable harm in the absence of an injunction.

Addressing the likelihood that BHF would succeed on the merits of its Free Exercise claim, the court found that NYCBOE’s policy was not neutral “because it refers to a religious practice without a secular meaning discernible from the language or context,” and “because it discriminates between those religions that fit the ‘ordained’ model of formal religious worship services, … and those religions whose worship practices are far less structured.”

Having found that the policy implicates BHF’s free exercise rights and is not neutral, the district court pointed out that the policy could only pass constitutional muster if it survives strict scrutiny analysis, which requires NYCBOE to show the policy serves a compelling state interest and is narrowly tailored to advance that interest. While it acknowledged that the “desire to avoid an actual violation of the Establishment Clause can be a compelling state interest,” it emphasized that “the Supreme Court has not decided whether a state’s Establishment Clause rationale might be sufficiently compelling to justify viewpoint discrimination.”

The district court noted that the Second Circuit panel had found the policy was a content-based restriction, and that it was reasonable for NYCBOE to believe that permitting worship services in its schools would, in fact, violate the Establishment Clause. However, it pointed out that neither the Second Circuit “nor the Supreme Court has ruled whether permitting religious worship services in schools during non-school hours violates the Establishment Clause.”

The district court stated:

Because this Court concludes that strict scrutiny now applies to the consideration of Plaintiffs’ Free Exercise Clause claim, the question before the Court is whether the Board’s Establishment Clause rationale is sufficiently compelling to justify burdening Plaintiffs’ free exercise rights. The Court believes the answer to that question requires a definitive finding as to whether permitting religious worship services in schools during non-school hours violates the Establishment Clause. For the reasons stated below, the Court answers that question in the negative and concludes that Defendants do not meet their higher burden of demonstrating a compelling interest.

Applying the endorsement test to determined whether NYCBOE’s Establishment Clause violation argument was compelling, the court concluded that a reasonable observer would not perceive the holding of religious worship services in a public school during non-school hours as state endorsement of religion. It also pointed out “the objective observer, acquainted with the text, legislative history, and implementation of  [the policy] would not perceive the Board’s policy as an endorsement of religion in the public schools.”

The district court, likewise, rejected NYCBOE’s argument that allowing BHF to hold its services in the public school would amount to the constitutionally impermissible practice of providing a religious group with public funding. It stressed that the “Supreme Court precedent cited … makes clear that no valid Establishment Clause concern exists in this regard when a school grants access to its facilities “on a religion-neutral basis to a wide spectrum” of outside groups as Defendants do here.” It, therefore, characterized NYCBOE’s argument as a “misplaced concern [that] does not make the Board’s interest a compelling one, and the Court ultimately agrees with Judge Walker [the dissenting judge in Second Circuit panel June 2011 decision]  that ‘the actions of Bronx Household, a private party, cannot transform the government’s neutral action into an Establishment Clause violation.'”

Turning to the question of narrow tailoring, the district court found that even if NYCBOE’s Establishment Clause rationale was a compelling interest, its policy was not narrowly tailored “to advance its interest of not appearing to endorse religion as proscribed by the Establishment Clause.” It concluded: “Because the Court finds that [the policy’s] ban on religious worship services is ineffective in achieving the Board’s stated concern of avoiding a violation of the Establishment Clause, the challenged policy does not advance the Board’s interest.”

Specifically, the court found that the policy’s “ban on religious worship services—which would exclude certain religions from worshiping in the schools but permit others—only weakens the perception of neutrality as between religion and non-religion.” It also point out that because individual elements of worship services are expressly permitted, e.g. singing hymns, praying, “the policy’s ban on ‘religious worship services’ is entirely ineffective in dispelling any confusion in the mind of the objective observer over State endorsement of religion.”

Lastly, while the district court conceded that NYCBOE “may have struck the appropriate balance for free speech and Establishment Clause purposes, [the policy] does not provide due consideration to [BHF’s] First Amendment free exercise rights.”


The district next addressed the question of whether the policy runs afoul of the Establishment Clause. It concluded that the policy failed under the third prong of the test enunciated in Lemon v. Kurtzman, 403 U.S. 602(1971), that the challenged government action must avoid excessive entanglement with religion. Under the policy, NYCBOE “only asks those organizations that plan to use the schools for religious purposes to certify compliance with the ban against religious worship services” and then, “may conduct an independent evaluation of the religious applicant’s activities to ensure compliance.”  The court reviewed the email correspondence between NYCBOE and BHF in which the former sought detailed descriptions of the nature of the latter’s meeting.  It concluded, “The Board has evidenced a willingness to decide for itself which religious practices rise to the level of worship services and which do not, thereby causing the government’s entanglement with religion to become excessive.”

Lastly, the district court found that the Supreme Court’s recent decision in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 132 S. Ct. 694 (2012), confirmed its holding that “the entanglement required by the current policy, however implemented, is excessive . . . .” It noted that the “Court of Appeals itself undertook to attempt to define worship in Bronx Appeal III,” illustrating “the problem of excessive governmental entanglement with religion that led the Supreme Court to recognize the ministerial exception in Hosanna-Tabor.

The district court then rejected NYCBOE’s argument that BHF’s claims were barred by the doctrines of the law of the case, claim preclusion, and issue preclusion.

Bronx Household of Faith v. Board of Educ. of City of New York, 10-8598 (S.D. N.Y. Feb. 24, 2012)

[Editor’s Note: In December 2011, Legal Clips summarized an article in the New York Times reporting that the U.S. Supreme Court had rejected BHF’s petition for certiorari in this case.  BHF asked the Court to review the U.S. Court of Appeals for the Second Circuit’s June 2011 decision upholding the city board of education’s decision to ban the church from holding its Sunday services at a public school where it had met since 2002. As a result of the Supreme Court’s denial, New York City moved to end the hundreds of prayer services that had been held in schools in recent years by Feb. 12, 2012. Some 160 congregations used school buildings for worship services in the 2010-11 school year alone.

In June 2011, Legal Clips summarized the Second Circuit panel’s split decison in BHF v. NYCBOE in which the majority held that NYCBOE’s policy prohibiting the use of school facilities for “religious worship services” does not violate the First Amendment’s Free Speech Clause. 

The dissent took issue with the majority’s conclusion that the policy’s “exclusion of [worship] services is both viewpoint-neutral and justified by Establishment Clause concerns.” It contended that the policy ”exclusively targets religious viewpoints,” which “is evident from the fact that, as in Good News Club, only ‘religious’ services are shut out of the forum.” No similar restriction is placed on secular gatherings that are materially indistinguishable from Bronx Household’s use of  the school.

The district court here largely adopted the dissent’s reasoning in accepting BHF’s free exercise claim, while maintaining agreement with the majority on the free speech and Establishment Clause claims.

Legal Clips noted the Supreme Court’s January 2012 decision in Hosanna-Tabor as reported by Education Week’s School Law Blog.  In the unanimous ruling authored by Chief Justice Roberts, the Court determined that both the Free Exercise and Establishment Clauses of the First Amendment “bar the government from interfering with the decision of a religious group to fire one if its ministers.”]

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