Bronx Household of Faith v. Board of Education
650 F.3d 30, 2011 U.S. App. LEXIS 11107 (2011)
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Rule of Law:
A public school's policy excluding religious worship services from its facilities during non-school hours does not violate the Free Speech Clause, as it is a reasonable, content-based restriction on an activity—not impermissible viewpoint discrimination—and is justified by the school's strong basis for concern that allowing such services would violate the Establishment Clause.
Facts:
- New York City's Department of Education (the Board) has a policy, a Standard Operating Procedure (SOP), allowing outside groups to use school facilities after hours for community welfare purposes such as 'social, civic and recreational meetings.'
- In 1994, Bronx Household of Faith, a Christian church, applied to rent space in a middle school for its Sunday morning services, which included activities like singing hymns, prayer, Biblical preaching, and communion.
- The Board denied the application based on its then-existing policy (SOP § 5.9), which prohibited the use of school property for 'religious services or religious instruction.'
- Following the Supreme Court's decision in Good News Club v. Milford Central School, the Board revised its policy to SOP § 5.11, which specifically prohibited the use of school property for 'religious worship services' or 'using a school as a house of worship.'
- Bronx Household of Faith subsequently applied again under the new SOP § 5.11 to use a public school for its 'Christian worship services.'
- The Board denied this second application under the new policy.
Procedural Posture:
- Bronx Household of Faith first sued the Board of Education in the U.S. District Court for the Southern District of New York after its 1994 application was denied.
- The district court granted summary judgment to the Board, and the U.S. Court of Appeals for the Second Circuit affirmed this decision in 1997 (Bronx Household I).
- After the Supreme Court's 2001 decision in Good News Club, Bronx Household filed a new lawsuit in the same district court upon being denied a permit again.
- The district court granted a preliminary injunction in favor of Bronx Household, which the Second Circuit affirmed in 2003 (Bronx Household II).
- After the Board proposed a revised policy (SOP § 5.11), the district court granted summary judgment to Bronx Household, permanently enjoining the Board from enforcing the new policy.
- The Board appealed, and a divided Second Circuit panel vacated the injunction and remanded the case in 2007 (Bronx Household III), with one judge finding the issue unripe for decision.
- Following remand, the Board officially adopted SOP § 5.11 and denied Bronx Household's application. The district court again granted summary judgment to Bronx Household and issued a permanent injunction.
- The Board of Education, as defendant-appellant, appealed that final decision to the U.S. Court of Appeals for the Second Circuit.
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Issue:
Does a public school district's policy that prohibits outside groups from using school facilities for "religious worship services" during non-school hours, while permitting use for a wide range of other community activities, constitute impermissible viewpoint discrimination in violation of the Free Speech Clause of the First Amendment?
Opinions:
Majority - Leval, Circuit Judge
No, the school district's policy does not constitute impermissible viewpoint discrimination. The policy permissibly excludes a category of activity—the conduct of worship services—rather than impermissibly discriminating against a religious point of view. The court reasoned that there is a critical distinction between excluding the expression of a religious viewpoint (which would be unconstitutional) and excluding the conduct of a worship service as a type of event. This content-based restriction is reasonable because the Board has a strong basis to believe that allowing its schools to be used for worship services could create the public perception of government endorsement of religion, which would risk violating the Establishment Clause. The court highlighted concerns that schools might effectively become state-subsidized churches on Sundays, especially given their dominant use of the facilities on that day, which could be misperceived as endorsement by young students.
Dissenting - Walker, Jr., Circuit Judge
Yes, the policy constitutes impermissible viewpoint discrimination. The dissent argued that the majority’s attempt to distinguish between the 'conduct' of a service and the 'expression' of a religious viewpoint is futile and contrary to Supreme Court precedent like Good News Club. In the dissent's view, the substance of Bronx Household's activities—which promote community welfare, morals, and character development—falls within the forum's purpose and is being excluded solely because it is addressed from a religious standpoint. The dissent also rejected the Establishment Clause justification, stating that Supreme Court precedent makes clear that providing neutral access to private religious speech in a public forum does not constitute government endorsement of religion.
Concurring - Calabresi, Circuit Judge
No, the policy is constitutional. The concurrence joins the majority but emphasizes a different rationale: that 'worship is sui generis' (unique). Because there is no secular equivalent to religious worship, a rule excluding it is a content-based restriction, not viewpoint discrimination. Furthermore, the policy's separate clause banning the use of a school 'as a house of worship' is a neutral, content-based rule that applies to Bronx Household, which admitted its intent was to use the school for worship. The government is entitled to take an applicant at its word when it describes its activity as 'worship'.
Analysis:
This decision carves out 'religious worship services' as a unique category of activity that the government may exclude from a limited public forum without engaging in viewpoint discrimination. It distinguishes this case from precedents like Good News Club, which protected religious speech and instruction, by focusing on the 'conduct' of a service as a distinct, excludable event. The ruling reinforces the idea that government entities can restrict speech based on reasonable concerns about violating the Establishment Clause, giving them more leeway to regulate the use of public property by religious groups. This creates a significant line-drawing challenge for future cases, which will have to distinguish between permissible religious expression and excludable 'worship services.'
