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NYC Ban on Schoolhouse Religious Services Left Intact by SCOTUS

By Casey C. Sullivan, Esq. | Last updated on

The Supreme Court declined to hear an appeal contesting a New York City policy refusing to allow outside groups to hold religious services on school facilities. The denial of cert, issued Monday, leaves in place the Second Circuit's decision from last April, which held that the NYC Board of Ed.'s policy was a reasonable way to ensure that the City did not violate the separation of church and state.

This may be the last round in litigation which began over 14 years ago, when the City first denied the request by Bronx Household of Faith to use school facilities for church services. The case illustrates the fine line municipalities walk when attempting to balance free practice of religion with the separation of church and state.

Speech and Establishment

The church argued that refusal to provide space constituted illegal viewpoint discrimination -- allowing the local Rotary Club access to empty classrooms, but not a local church, was a violation of the group's First Amendment rights to free speech, they argued. The Supreme Court had ruled in Good News Club that a school's refusal to permit a religious club to meet after hours was just such a violation.

The school board had acknowledged that, when it opens it halls to the public, it must allow speech free of viewpoint discrimination. However, it also must avoid providing impermissible support to religious organizations. Providing rent free public space for religious services would be such a violation, the City argued.

Activities are not Expressions

The Second Circuit agreed, finding that the City's policy was a rational way to walk to line between Constitution's free speech and establishment clauses. The regulation did not fall under the rule established in Good News Club because the policy banned only conduct, not the expression of a point of view. The rule barring religious worship did not prevent religious groups from using school facilities to teach religion or advocate their religious point of view.

The Supreme Court's refusal to hear Bronx Household of Faith's could result in more school districts adopting similar policies. The again, maybe not -- New York major Bill de Blasio pledge to review the rules following SCOTUS's denial of cert. In the meantime, the school house remains a contentious site in the struggle over religious expression and state secularism.

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