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NYC government considers ban of religious congregations meeting in public school buildings

NYC government  is reviewing the possibility of almost immediate expulsion of over 60 churches that have been meeting in the public schools. Hindu, Buddhist, Jewish and Muslim groups who meet in the schools also may be affected. The Law Department of the city said that the Education Department was reviewing the possibility of expelling religious groups […]

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City argues that small church dominates PS 15 in Bronx

NYC government  is reviewing the possibility of almost immediate expulsion of over 60 churches that have been meeting in the public schools. Hindu, Buddhist, Jewish and Muslim groups who meet in the schools also may be affected.

The Law Department of the city said that the Education Department was reviewing the possibility of expelling religious groups from using school buildings for worship services at the end of the school year. The NYC Department of Education lists the last day of the school year as June 28th.

The city government says it will still allow secular groups to meet in public schools. City Hall lawyers have been trying for almost twenty years to place religious groups in a special category different from other community groups so that it could block their equal access to public facilities. The city allows hundreds of community groups to use the public schools for various purposes. The U.S. Supreme Court has consistently ruled that the city cannot block freedom of religious or secular expressions of belief or devotion. However, the city argues that it can block certain types of activities like worship services, arguing that these activities are not “expressions of belief” but expressions of “content.”

The Bronx Household of Faith is a small church that has put most of its efforts and money into helping the poor. Its founders Pastors Bob Hall and Jack Roberts moved into the University Heights neighborhood several decades ago in order to live “among the poorest and neediest.” For years its members have cared for AIDS patients from the poorest socio-economic groups. The church says it was able to put more money into helping because, since 2002, they obtained space from Public School 15. The church meetings at the school attract about 100 people.

The city and Judge Pierre N. Leval, for the majority opinion, argue that the church’s meetings tended “to dominate” the school on Sunday and this would lead to a public perception that the school endorses the church. The city and Leval based their argument on their estimates of public perception but did not adduce any public opinion research that the school’s neighbors knew of the church’s meetings in the school or thought that it represented an endorsement of the church.

Alliance Defense Fund (ADF) the lawyers for Bronx Household of Faith, are planning an appeal of the decision. ADF's Jorden Lorence says that the dissenting judge's "analysis rightly explains how the Supreme Court has repeatedly rejected the arguments the school board has raised to defend its policy."

What do you think?

Document: Bronx Household vs Board of Education

Document: Statement by lawyer for Bronx Household of Faith

  • this is why people should have the freedom to decide that their tax dollers go towards a private school where they can excercise their right to whatever doctrine they choose.

  • Historic Church of the Covenant (PCUSA) at 310 East 42nd Street @2nd Avenue in Manhattan, conveniently located 2 blocks from Grand Central Station and designed by J. Cleveland Cady (architect of the Museum of Natural History) welcomes the congregations of the churches that have been displaced by the new government ban on churches using public schools for religious meetings. We are a beautiful location for your weddings also.

  • This really is some thing I need to do more research into, appreciation for the posting.

  • Some people are not so liberal viz things that they don't like,

  • Yes. My understanding is that this is already current practice at some schools. Some principals who either don't want religious groups or the additional administrative work already ban all community access. This is allowed by the Board of Education and is not being litigated as far as I can tell. The principle is either all equally or none equally.

    It is a common belief that some principals chafe that they have to decline entrance to all groups because they don't want the entrance evangelical groups.

  • Could the school -- equal access laws style -- decide to ban ALL community access, without discriminating on content? In other words, don't just ban religion, ban all content equally?

  • Calvin Massey constitutional law prof at UC Berkeley law school writes:

    A couple of points strike me as odd. First, it is not easy to identify what constitutes a "religious worship service." Why is a group gathered in prayer not a religious worship service (which the majority concedes is an activity not within the exclusion)? The inclusion of some ritual act hardly alters the viewpoint expressed by either activity. Thus, I am dubious that the exclusion is viewpoint-neutral. Second, the majority admits that the Board's rule does not exclude non-religious worship services, and concedes that if there were such things, the rule would be viewpoint discriminatory. That is just too glib for me. There are abundant instances of non-religious worship: Idolization of pop stars; orthodox political views of all stripes -- libertarian, socialist, environmental, Acorn, the Tea Party movement; Money; Power; Self-Help. To dismiss these secular worship enterprises as something other than "worship" is to demonstrate that the "religious worship" exclusion is all about eliminating one particular viewpoint. Nor will it do to say that religious worship is all about faith and the secular activities mentioned are not driven by faith. Really? Indeed, one could argue that a great deal of the instruction that goes in today's public schools is indoctrination in the received and conventional secular faiths of our time. Worship can occur at a secular altar just as easily (perhaps more easily) than at a religious one.

    This is not to say that the exclusion is constitutionally invalid. It might be valid; but only if the Board can prove that permitting "religious worship services" in the schools after hours violates the Establishment Clause. The Second Circuit ducked that issue, preferring to find an easier (if less plausible) solution.

  • That is not really our role. We would like someone, both sides, to write OpEds for A Journey. 🙂

  • Could you find someone supportive of churches and other groups in schools to write an OpEd piece for the NYTimes?

  • A number of responses to the NYT Op-Ed piece, which echoes many arguments made by the judges who ruled in favor of the city:

    The writer implies the use of their neighborhood school building by the church in effect turns it into a church. Despite the enthusiastic claims of the pastor's 8-year-old daughter, the dissenting judge in the June 2 decision has this to say: 'Such an argument – that somehow a neutral forum is physically (or perhaps metaphysically) transformed into a non-neutral forum by the private activity undertaken there – has the feel of rhetoric. The same claim could have been made in Widmar and Good News Club, in which decidedly church-related activities were permitted to occur on a regular basis. Bronx Household’s services do not convert P.S. 15 into a church any more than the Boy Scout’s meetings convert it into a Boy Scout lodge.'

    Does anyone have the facts around this claim? The writer states: "Ours is just one of at least 60 New York City schools that have doubled as rent-free houses of worship — the vast majority of them evangelical Christian churches — in their off-hours." I think churches generally pay rent. But more importantly, if a church is allowed to use a facility paying only custodial fees, that privilege should be available to other groups on an equal basis.

    "Many (churches) have little connection with the school communities." That the writer believes many churches express views foreign to the communities around them actually tends to validate another argument of the dissenting judge - that the purpose of the public schools as neutral forum is to allow the expression of diverse points of view, religious ones included. The writer's view on whether churches are connected might not be shared by all her neighbors, but it is of course a view the law protects the expression of. The Bronx Household church ought to have the same. But kudos to her for attending the service!

    The crux of the majority opinion is echoed here: 'A friend in TriBeCa told me he was taken aback when his daughter asked him, “Daddy, is the church part of our school?”'. The judges felt the conduct of worship services (the nuance of that term addressed below) could reasonably give rise to the impression shared by the writer's friend's daughter. The dissenting opinion has this to say about the Supreme Court's view on this question: "The battle that the majority and the Board (of Ed) wish to fight, however, has already been lost. The Supreme Court has rejected Establishment Clause concerns, including those raised by the majority, in this context because they are premised on the mistaken belief that permitting religious groups to use school facilities for religious purposes on a non-school day in a neutral forum creates a realistic danger that the public will perceive the Board as endorsing religion."

    A relatively minor point: "But since school facilities are often available only on Sundays (when sports teams and extracurricular clubs are less likely to need space), Jews and Muslims, for example, were mostly shut out." From a footnote in the dissenting opinion: "While the Board implies that there is a lack of availability of Friday and Saturday permits for use of its 1,197 buildings, its own evidence demonstrates that approximately 750 buildings are available for after-school use on Fridays, that 400 buildings are available for Saturday use, and that 900 buildings are available for Sunday use."

    This is simply incorrect: "To exclude an activity from a school because it is religious in nature, Judge Pierre N. Leval wrote, is not to discriminate against it on account of its religious viewpoint." Judge Leval went to great lengths in the majority opinion to argue that while it is discriminatory to exclude religious speech in schools (e.g. Good News Club), NYC can exclude "worship services" because they constitute a particular type of "content" (i.e. "content" that can give rise to concerns about establishment).

    The writer: "But maybe it’s just that I imagine that that big red door is about education for all, not salvation for a few." In the legal context, particularly as highlighted by the dissenting judge, I would argue that the use of public schools by churches to express their religiously-informed views is in fact very much about education for all.

    The writer: "Sometimes a building is more than a building." Again, as far as current legal precedent is concerned, it's actually just a building.

  • Good Lord New York...

  • The actions of the City of New York’s Department of Education in this regard are unnecessarily antagonistic toward people of all faiths and evidently spurious.

    In plain language, it doesn’t make legal sense. This ruling, if enacted, is openly discriminatory and a blatant violation of the First Amendment, “Congress [and all governmental bodies by extension] shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” as well as the Equal Access Act, passed on Aug. 11, 1984 (Senate 88-11, House 337-77), which specifically addressed this matter. The Supreme Court has consistently ruled that equal access policies permitting religious groups to use public spaces are not incompatible with the Establishment Clause, citing specifically that, “the Establishment Clause does not bar a policy of equal access, in which facilities are open to groups and speakers of all kinds.” Widmar v. Vincent, December 8, 1981 (Powell opinion), and Board of Education of Westside Community Schools v. Mergens, June 4, 1990, (O’Connor opinion), both clearly lay out the criteria in cases such as these.

    NYC’s actions are actually embarrassingly unconstitutional. Any lawyer would know this almost immediately. How the city’s legal department actually allowed this to get this far is beyond comprehension, as it is clear that any such action would easily be overturned when challenged in a U.S. court of law.

    Why the city would put any religious group through the expense of having to challenge such an idiotic proposal displays a level of recalcitrance toward established civil rights law, that it begs strong suspicion of a more general nefarious intent against NYC’s faith community on the part of the Education Department, if not city government as a whole.

  • Complicated topic. I look forward to more articles and comments on this.

  • The article and comments have been informative. Thanks!

  • Maybe a court will rule against NYC simply because their rules are totally incoherent ! ;-}

  • A hoops program is flourishing with 70 kids in Devoe Park that has become synonomous with trouble. The league’s founder, Edwin Santiago, and his “right-hand man,” Frank Abarca, both attend Bronx Household of Faith, the evangelical Christian church that the city wants to throw out of PS 15/291 on Andrews Avenue in University Heights.

  • Even more perplexing is that I read the Mayor's office is behind this. You know, the very same Mayor who was pushing for the mosque at Ground Zero? That (supposedly) Jewish Mayor, Bloomberg. This is an example of getting the Gov't you deserve. Who thought giving him a 3rd terms was a good idea anyway?

    Moreover, the houses of worship pay the city for the use of those facilities. One would think the city could ill afford to turn away any additional fund, since it's broke!

  • Can anyone figure this one for me? "Under at least this branch of SOP § 5.11 , the schools are freely available for use by groups to express religious devotion through prayer, singing of hymns, preaching, and teaching of scripture or doctrine. It is only the performance of a worship service that is excluded."

    Thank you for highlighting that the city and judge believe that allowing conduct of worship services in public schools exposes the City to 'substantial risk of being found to have violated the Establishment Clause.'

    Let's say a group used a school to perform the expressly permissible activities above but didn't call it a worship service - is it not the actual activities of prayer, preaching and singing themselves which could give rise to a perception of endorsement of religion, rather than the collective label given to the activities? I would say the label is immaterial and if you expressly allow the elements of worship to be conducted in the name of free speech, then you cannot disallow them because of possible violation of separation of church and state.

  • June 03, 2011

    Today, the Union of Orthodox Jewish Congregations of America – through its Institute for Public Affairs – expressed its disappointment with a ruling by the New York-based U.S. Court of Appeals (2nd Circuit) upholding a New York City Board of Education policy that bars religious groups from using public school facilities for religious services during non-school hours.

    Nathan Diament, director of the Orthodox Union’s Institute for Public Affairs, stated: “While disappointed in this most recent ruling, we are hopeful that the Supreme Court will agree to hear this case and then send a clear message that the Constitution does not require religion to be discriminated against in, but protects and nourishes religious freedom in the United States.”

    The case arose after a request by The Bronx Household of Faith, an evangelical Christian church, to use a gymnasium at Middle School 206B in the Bronx for its weekly religious services was refused by the board of the local school district. The local school board refused B.H.F.’s request on the basis of a New York City Board of Education policy governing the use of school facilities by outside groups. That policy provides, in general, that school facilities may be used by community youth, adult and group activities as well as for other purposes that relate to educational, communal and social activities. Relevant to this case, the policy specifically states:

    No outside organization or group may be allowed to conduct religious services or religious instruction on school premises after school. However, the use of school premises by outside organizations…after school for the purposes of discussing religious material or material which contains a religious viewpoint…is permissible.

    Since 1981, the US Supreme Court has held in several cases that religious speech may not be infringed upon in the name of the Establishment Clause and doing so violates the free speech rights of religious citizens. The Orthodox Union joined with other religious groups in challenging this New York City policy over the many years of this litigation and believes this policy violates religious citizens’ rights of free speech, free exercise of religion, equal protection and that permitting the use of public school facilities – on the basis of religion neutral criteria – for religious services would not violate the Constitution’s Establishment Clause.

  • I would say that it is not tricky but is sensitive. Religious minorities do sometimes feel awash in a Christian sea.

    However, I don’t think you can parcel out freedoms by quota: who decides who has the freedom? The majority could, and has sometimes, decided that only the majority has the freedoms. In a democracy parceling out freedom is the equivalent of majority rule, eventually. Our founders thought that pure democracy would be dangerous. So we have a constitution and checks and balances.

    Are we to tell the Catholics, who make up 44% of NYC's population, that they can have only 10% of the freedom of expression allowed on the public square? That they can only build 10% of the worship sites? That though they pay most of the taxes, that they can have access to only 10% of the space? That they are allowed only 10% of the immigrant slots?

    Or history textbooks in public schools: should they tell US history by quota? That well, the Muslims get 10% of space, the seculars get 10%, the Christians 10%, so forth?

    Freedoms are not quota based; quotas will destroy freedom and intellectual integrity.

    Another example. There have been the obnoxious complaints that “the Jews” or "the Koreans" control the stores in Black areas. Should we limit Jewish ownership to only their percent of the population in Harlem? i.e. 0%?

    Law by quota is a good formula for continual interreligious conflict.

    It is not tricky if one goes by a neutral law. In fact the Supreme Court will insist on that. That is why the majority on the panel of court of appeal judges insisted that their ruling was based on “neutral criteria.” The neutral criteria was that “worship” is an activity, not a religious content. An activity is religiously neutral. The court panel ruled that the church could do all the expression of religious beliefs that they wanted: prayer, singing and preaching that it wanted. The church just couldn’t call it a worship service. The court panel says, I think, an activity like “worship” is the equivalent of establishing a church in a school building; thus it violates the establishment clause. The church gives the appearance that the school is helping to establish the church.

    The court of appeals is not challenging the Good News Club Supreme Court ruling. This ruling was allowed the Good News Club equal access as a student group in a school district in New Milford, New York. The court of appeals knows now that it can't directly challenge this ruling. The court of appeals knows this and said several times that it was not challenging the Good News Club ruling.

    The Good News Club ruling says that a school must not discriminate between individuals or groups based on religious belief or expression. So in US Muslim women can wear veils to school and public places (we are not France). Student clubs can form around religious purposes (note how a quota of student clubs in high school or college would in effect be limiting the establishment of churches; the implications would be that that city councils could set quotas on the number of churches, synagogues, etc that could be built). But certain limits pertain, like times of meeting, costs, etc.

    The court of appeals panel would not set a quota because it is unconstitutional. They may have weakened their case by implying quota with the word “dominate.” In fact they also mentioned that most of the churches were Christian. It is very alarming that a court would single out one religion for its reasoning for restrictions. A quota on freedom will not pass the Supreme Court. They will try to stick to the argument that it is appearances of “establishing a religion” that should be relevant. In the past the supreme court is more divided over the “establishment” issue.

    However, I don’t think it likely that the ruling will be successful. This NY courts have been continually reversed on this particular issue by the Supreme Court. What is happening is that the secular factions on the court are trying to find a constitutional approach to whittle down the Good News Ruling. This is not unusual in the follow up of Supreme Court rulings. This case is already 20 or 30 years running. But it gives the appearances of the government Goliath with millions of legal fees persecuting the little David, the small 100 member church that hardly afford a tin cup. The general idea is to wear down the church so that it will give up.

  • I think it's a really tricky and sensitive matter. I understand both sides, Supreme Court's rule of freedom of religion and the city's separation of church and state. Because NYC is so diverse, it is hard to appeal to all religious groups. Even with allowing equally Jewish, Christian, and Hindu groups to congregate, the city runs the risk of utilizing school space mainly for Christian groups (because of the amount of Christian groups and the outgoing nature of Christianity). If the city allows equally all religious groups, should city policy contain a religious group quota?

  • This is huge! Many nyc churches will be displaced by the end of June if the appeals court doesn't give them a stay--

  • In our link to the pdf of the decision you will see the various parties who filed amicus briefs with the court. This will indicate some of the actors. The primiary impetus for this case comes from the Mayor's office.

  • Agreed on the secularism issue. But, I was wondering about NYC politics and interest groups. e.g., Currently in Chicago, there is no "hue and cry" from anyone on this, so churches meet in schools. All it would take is for some official or interest group to make a stink and I could imagine the same thing happening here, because secularism is often the default position.

  • There are probably multiple reasons. Some believe that secularism is the appropriate philosophy and mechanism for public life.

  • Do you have any ideas about what is truly driving this new round of questions about churches in schools ? The claims reported in the article are too flimsy.

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