Court Upholds Rule Against Use of Schools for Sunday Worship
By Mark Walsh on June 2, 2011 6:15 PM
http://blogs.edweek.org/edweek/school_law/2011/06/a_new_york_city_school.html
A New York City school system rule barring the use of public schools for weekend religious worship services does not violate the First Amendment rights of a Christian church, a federal appeals court ruled on Thursday.
If that conclusion sounds familiar, it's because the controversy between the Bronx Household of Faith and the New York City school district has been raging since 1994. In the first lawsuit, both a federal district court and the U.S. Court of Appeals for the 2nd Circuit upheld the school system's refusal to rent a school to the church, and the U.S. Supreme Court declined to review the case in 1998.
Later, the Supreme Court's 2001 ruling in Good News Club v. Milford Central School prompted the church to try anew. In Good News, the high court held that it was unconstitutional for a school district to bar a private Christian group from after-school use of its facilities when it opened them to a wide range of other community uses.
In 2002, Bronx Household of Faith was granted an injunction allowing it to use Public School 15 for its Sunday worship services, and it has been doing so since then while its second legal challenge has proceeded on the merits. The school system now defends its efforts to deny access based on a 2007 rule that prohibits using school buildings for worship services.
A federal district court granted a permanent injunction to the church. But in a 2-1 ruling on June 2, a 2nd Circuit panel ruled for the school system. The majority said the school system had valid, non-viewpoint discriminatory reasons for barring worship services even when it allowed certain other religious activities in its facilities.
"The board could ... reasonably worry that the regular, long-term conversion of schools into state-subsidized churches on Sundays would violate the Establishment Clause by reason of public perception of endorsement," said the 2nd Circuit majority in Bronx Household of Faith v. New York City Board of Education. "A worship service is an act of organized religion that consecrates the place in which it is performed, making it a church. ... Bronx Household and the other churches that have been allowed access under the injunction tend to dominate the schools on the day they use them."
Writing in dissent, U.S. Circuit Judge John M. Walker Jr. said the school system's rule against allowing religious worship services "is impermissible viewpoint discrimination against protected speech and is unsupported by a compelling state interest. In this case, Bronx Household's worship services fit easily within the purposes of the board's broadly available forum and may not be the object of discrimination based upon the religious viewpoint expressed by the services' participants."
Walker said the majority's ruling could not be squared with Supreme Court decisions on religious viewpoint discrimination, and he said the case presented "important doctrinal considerations worthy of the Supreme Court's attention."
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