Religion in Schools: 2nd Circuit Bans After-Hours Use of School

What does the 2nd Circuit Court of Appeals have to say about the use of New York public school facilities for after-hours worship? Would a limitation on such use be an unconstitutional restraint of religion, or an equally unconstitutional support of religion in schools?

Last week, the 2nd Circuit Court of Appeals looked at the case of Bronx Household v Board of Education for the fourth time. This is an important case and has been before the courts for quite some time now, so we will break down the facts and legal issues of this case over a series of posts.

According to Reuters, the dispute began in 1994. Here are the quick facts:

1. A NY State law allowed public schools to permit the use their facilities after hours for "social, civic and recreational meetings and entertainments, and other uses pertaining to the welfare of the community," if the use was "nonexclusive and ... open to the general public." In order to enforce this, a policy was put in place by New York City Department of Education.
2. In 1994, Bronx Household applied to use certain public school space for its Sunday morning services. The Board denied the application and Bronx Household brought suit, alleging viewpoint discrimination.
3. Summary judgment in favor of Board was granted and suit was dismissed. The 2nd Circuit affirmed the district court opinion.
4. In 2001, a case came down from SCOTUS, which was in favor of Bronx Household's position. Bronx reapplied to use the facilities and were rejected again. So, they brought suit citing the SCOTUS ruling. Bronx Household were granted a preliminary injunction and sought to get a permanent injunction. The district court granted the permanent injunction.
5. The 2nd Circuit affirmded the preliminary injunction. Bronx then moved for a permanent injunction, which was granted by the district court.
6. On appeal, the 2nd Circuit vacated the injunction with divided rationale, and remanded the case.
7. In 2007, the Board adopted a new policy that would have the effect of banning Bronx's desired use of the property. Both parties moved for summary judgment and the district court ruled in favor of Bronx, permanently enjoining the Board from enforcing the policy.
8. The case went to appeals, and the 2nd Circuit reversed the judgment and vacated the injunction in 2011.

The public school was deemed to be a "limited public forum." As such, the 2nd Circuit Court of Appeals held that "a category of speakers or expressive activities may be excluded from a limited public forum" but only based on "reasonable, viewpoint-neutral rules."

So was this a restriction of freedom of religion? The 2nd Circuit Court seemed to say "not quite."

In the next blog post, we'll talk about last week's decision and we'll look at some criticism of the previous decisions in the Bronx v. Board of Education Cases.

Related Resources

• Appeals Court Upholds NYC School Church Service Ban (FindLaw's Decided)
• Good News Club et al v. Milford Central School: Amicus Brief of National Jewish Commission on Law and Public Affairs (FindLaw)
• Bronx v. Board of Education: 2nd Circuit Case 2003 (FindLaw Cases)