Federal district court grants permanent injunction barring New York City Board of Education from excluding churches from using school facilities for religious services
Bronx Household of Faith v. Board of Educ. of City of New York, No. 01- 8598 (S.D.N.Y. June 29, 2012)
Abstract: At the direction of the U.S. Court of Appeals for the Second Circuit (CT, NY, VT) to render a final judgment on an existing preliminary injunction, a New York federal district court has granted summary judgment in favor of the Bronx Household of Faith (BHF), and has issued a permanent injunction allowing BHF to hold Sunday religious services in a New York City public school. While the district court re-adopted its reasoning from its earlier opinion granting BHF’s motion for a preliminary injunction, it provided additional analysis as to why the latest arguments of the New York City Board of Education (NYCBOE) fell short.
The court rejected NYCBOE’s argument that its Facilities Use policy did not burden the First Amendment free exercise rights of outside religious groups seeking to use public schools. Instead, it found that the policy failed the compelling interest prong of the strict scrutiny test under the Supreme Court’s Free Exercise Clause analysis. The court also found that the policy failed the strict scrutiny test’s second prong because the policy was not narrowly tailored to advance NYCBOE’s interest in avoiding an Establishment Clause violation. It concluded that the Board’s failure to provide definitions for “religious worship services” provision and the “house of worship” provision left the policy fatally flawed.
Lastly, the court concluded that the policy violated the Establishment Clause under the Lemon test’s entanglement prong. It stated: “Defendants are not immune from excessive entanglement once they begin to verify the qualitative nature of specific religious practices.”
Facts/Issues: This case involves the application and enforcement of a provision of a facilities use regulation (“Reg. D-180″) to churches or similarly situated individuals or entities who wish to rent space in public schools for morning meetings that include religious services. This matter has been in litigation in a federal district court and the Second Circuit since about 2002, and Legal Clips has written about its extensive litigation history in June 2011, December 2011, and March 2012. Thus, this case summary will focus on the most recent phase of litigation leading up to the district court’s June 2012 ruling.
On February 24, 2012, the district court granted of BHF’s motion for a preliminary injunction. In granting the motion, the court found the deprivation of BHF’s First Amendment free exercise right to constitute irreparable harm. Regarding BHF’s likelihood of success on the merits, the court first found that under the U.S. Supreme Court’s Free Exercise Clause analysis used in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532-33 (1993), Reg. D-180 is not neutral on its face, and it discriminates between religions fitting a formal religious worship service model and those religions whose worship practices are less structured.
The court also found that Reg. D-180 could not satisfy a strict scrutiny analysis. First, the Board’s stated interest in avoiding the perception of endorsing religion is not sufficiently compelling because allowing religious worship services in the Board’s schools during non-school hours does not violate the Establishment Clause. Second, the court found that Reg. D-180 does not advance the Board’s stated interest because, in light of the types of religious activities that are expressly permitted in the Board’s schools, Reg. D-180′s ban on religious worship services is ineffective. The court further found that Reg. D-180 is not narrowly tailored because the Board has not shown that other less restrictive means would fail to advance the Board’s interest. The court also found that based on new evidence on Reg. D-180′s implementation and a recent Supreme Court decision in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 132 S. Ct. 694 (Jan. 11, 2012), Reg. D-180 violates the Establishment Clause by fostering excessive government entanglement with religion. Finally, the court found that BHF’s Free Exercise and Establishment Clause claims were not procedurally barred.
NYCBOE immediately appealed the preliminary injunction to the Second Circuit. However, on February 29, 2012, the Second Circuit declined to hear the appeal, and directed the district court to render a final judgment in the case.
Consequently, the parties submitted their cross-motions for summary judgment to the district court, and oral arguments were held. In its summary judgment motion, BHF seeks to convert the February 2012 preliminary injunction into a permanent injunction, reasserts that Reg. D-180 violates their free exercise rights and fosters excessive government entanglement with religion in violation of the Establishment Clause. In its cross-motion for summary judgment, NYCBOE reargues that enforcing Reg. D-180 does not violate BHF’s free exercise rights, and that enforcement is necessary to avoid violating the Establishment Clause. NYCBOE also argues that implementation of Reg. D-180 does not require NYCBOE to entangle themselves excessively with religion, and, therefore, does not violate the Establishment Clause.
Ruling/Rationale: The district court denied NYCBOE’s cross-motion for summary judgment, and granted BHF’s motion on its Free Exercise and Establishment Clause claims, permanently enjoining NYCBOE from enforcing Reg. D-180 so as to deny BHF’s application or the application of any similarly situated entity or individual to rent space in NYCBOE public schools for meetings that include religious worship.
In reaching its decision, the district court determined that its reasons for granting BHF’s motion for a preliminary injunction in February 2012 were sound and that implementation of Reg. D-180 violates both the Free Exercise and Establishment Clauses. Rather than repeating those reasons, which the court re-adopts here, the court uses this new opinion to address why NYCBOE’s latest arguments fail.
Free Exercise Clause Claim
First, the court rejected both the legal and factual bases supporting NYCBOE’s argument that Reg. D-180 does not burden, let alone substantially burden, BHF’s free exercise rights. The district court found unpersuasive NYCBOE’s legal argument that current Reg. D-180 would not burden BHF’s free exercise rights because the Second Circuit determined in 1997 that the predecessor policy did not raise any such concerns. The district court stated that the Second Circuit’s 1997 conclusion was no longer true for current Reg. D-180 “because the new regulation both discriminates against religion on its face and discriminates among religions.” The court also found that testimony received by the district court at this latest stage of the case, i.e., that denial of access to the school will force BHF to eliminate its ministries to its members and the community, soundly refuted NYCBOE’s fact-based argument that since BHF has survived having to move five times and grown, Reg. D-180 does not burden BHF’s free exercise rights.
Second, the court was unpersuaded by NYCBOE’s argument that applying Lukumi‘s “strict scrutiny analysis in the presence of [NYCBOE's] competing Establishment Clause concern would essentially render the Establishment Clause meaningless.” The district court concluded that NYCBOE’s argument “is simply not true: a concern over an actual violation of the Establishment Clause could certainly justify a burden on the free exercise of religion under Lukumi.”
The district court also rejected NYCBOE’s argument that given the competing interests of BHF’s free exercise rights and NYCBOE’s purported Establishment Clause concern, the court should decline to apply strict scrutiny based on the reasoning in Locke v. Davey, 540 U.S. 712 (2004) (involving a state-funded college scholarship program). First, the scholarship program in Locke was not a forum for speech, and, therefore, the Supreme Court’s “cases dealing with speech forums were ‘simply inapplicable.’” Second, “Locke involved neither discrimination among religions nor intrusive determinations regarding contested religious questions.” Third, the court determined that “the counter-interests at play in this case are altogether differently balanced from those at issue in Locke. While the Locke Court confronted a minimal burden on the free exercise of religion and a substantial and historic antiestablishment interest, here the Court faces a substantial burden on [BHF's] free exercise rights and a misperceived Establishment Clause concern raised by [NYCBOE].”
Third, the court disagreed with NYCBOE’s contention that Reg. D-180 would survive strict scrutiny. It found no compelling interest because “none of the scant evidence that [NYCBOE] point[s] to proves that an Establishment Clause violation would result but for [ ] Reg. D-180′s religious use prohibitions.” The court agreed with “other courts that have directly confronted the merits of [NYCBOE's] constitutional concern and concluded that a school board does not violate the Establishment Clause by permitting religious organizations to hold worship services during nonschool hours.”
The court also concluded that NYCBOE failed to satisfy the narrowly tailored prong of Lukumi’s strict scrutiny test because Reg. D-180 does not advance the Board’s concern of avoiding an Establishment Clause violation. It found two fundamental flaws in NYCBOE’s assertion that, taken together, Reg. D-180′s “religious worship services” provision and the “house of worship” provision “reach all forms of worship, whether practiced by ordained religions or those with less formal worship practices.” First, the court stated it could not “see how [NYCBOE] can possibly prove their assertion that ‘the two provisions of [ ] Reg. D-180 … reach all forms of worship’ in light of their refusal to define either provision.” Second, it pointed out that “the report submitted by [BHF's] expert demonstrates the practical impossibility that [ ] Reg. D-180 treats all religions equally.” As a result, the court concluded that the provisions in question “are not comprehensive and neutral; rather, they treat certain religions differently from others.”
Establishment Clause Claim
Finally, based on the evidence regarding Reg. D-180 verification and compliance protocols presented to the court on NYCBOE’s cross-motion, which “requires state officials to ‘inquire into religious doctrine,’” the court remained unconvinced that Reg. D-180 does not cause excessive government entanglement with religion. Applying the three-prong Lemon test, it determined that Reg. D-180 ran afoul of the excessive entanglement prong. The court concluded that Reg. D-180 “call[s] for official and continuing surveillance leading to an impermissible degree of [government] entanglement” with religion, in violation of the Establishment Clause. “Defendants are not immune from excessive entanglement once they begin to verify the qualitative nature of specific religious practices.”
Bronx Household of Faith v. Board of Educ. of City of New York, No. 01- 8598 (S.D.N.Y. June 29, 2012)
[Editor's Note: On July 3, 2012, Adam Klasfeld of the Courthouse News Service reported on the parties' reaction to the district court's decision. NYCBOE's attorney, Jonathan Pines, vowed to appeal again. He said, "We are very disappointed with the District Court's ruling mandating that the Department of Education allow churches and other religious groups to worship in public schools after hours." Pines continued, "In finding that the Constitution requires that result, the District Court virtually ignores a Second Circuit appeals court decision, issued one year ago, rejecting the plaintiffs' Free Speech claims."
Klasfeld also reported that several religious groups are listed as amici in support of BHF. Donna Lieberman, Executive Director of the New York Civil Liberties Union, which supports NYCBOE's position, said, "The NYCLU champions the right of all New Yorkers to worship, or not, as they choose." She added, "But turning public schools into churches every Sunday undermines the core American principle of separation of church and state. We expect that the ultimate decision on this matter will be made by the U.S. Court of Appeals for the Second Circuit, which has previously upheld the city's policy."]
