The City filed a legal brief with the U.S. Supreme Court on Monday, January 12th arguing for the constitutionality and public good of the rules prohibiting religious groups from obtaining space in public schools for worship services.
This week seems to be religion week for the DeBlasio administration. On Tuesday Mayor Bill De Blasio opposed a lawsuit in the Third U.S. Circuit Court of Appeals in Philadelphia that Muslims filed against spying by the New York Police Department. On Wednesday, De Blasio announced a big pot of money was being given to faith-based groups for Middle School afterschool programs. City Hall also dropped word that it is close to an agreement with rabbis on how to handle health risks in circumcision.
Worship services in the public schools hurt the public good, De Blasio claims.
Equating “worship services” with gambling activities, commercial huckstering, and private events like weddings, New York City’s lawyers argued that it would be unlawfully disturbing to other members in the community to have worship services in the public schools, even in the off-hours and clearly labeled as not sponsored by the school. One part of the brief painted a picture of one congregation lurking across the street from a public school in order to lure students with offers of free hot chocolate to come into their worship services.
The City claimed that the Federal court of appeals had ample evidence that weekly worship services in the public schools would give rise to a “reasonable concern” regarding the appearance of endorsement of religion. However, the only scientific evidence about what the reasonable man on the street thinks about worship services in public schools as he passes by was gathered by A Journey through NYC religions with the help of a class from Colgate University. About two-thirds of New Yorkers passing by such public schools thought that it was okay for the schools to rent to the churches and wasn’t a violation of the separation of church and state.
City officials say that they are merely preserving the prerogative of the public schools to issue such rules as prohibiting worship services in its space. The hint seems to be, relax, we won’t enforce those rules right now. Many New Yorkers who support the religious groups obtaining public school space in the off hours might wonder, why doesn’t the mayor just change the rules if that is what he really wants, without the considerable costs and public tensions of a U.S. Supreme Court case?
Indeed, De Blasio was elected with a strong showing of evangelical voters who believed that he supported them in their fight with Mayor Michael Bloomberg over churches meeting in public schools in the off hours. He marched with them in their public parades and demonstrations. At an April 3, 2014 press conference the De Blasio said, “I stand by my belief that a faith organization playing by the same rules as any community non-profit deserves access. You know, they have to go through the same application process, wait their turn for space, pay the same rent – but I think they deserve access.” Now, the faith organizations may be wondering at the mayoral strategy.
Since the 1990s, the Bronx Household of Faith, standing for the rights of all religious groups, has been fighting city government over the right to obtain public school space in the off hours on the same terms as all other community groups.
But in 2014 the Second U.S. Circuit Court of Appeals ruled against the Bronx Household of Faith which then appealed to the U.S. Supreme Court. Right now, the city cannot empty the schools of worshipping religions because last year’s appeal automatically halted the implementation of the city’s policy.
The City’s argument
Right from the first page the City’s lawyers tried to counter the popular argument that the churches’ rentals were providing money to cash-strapped schools by arguing that in fact the city schools were losing money by opening the school buildings to the churches. However, the City's lawyers provided little evidence in their brief and no monetary figures about the extent of the losses.
All community groups that use the public schools in the off hours pay a set amount set by the city to offset costs associated with opening the school on weekends. Of the several tens of thousands of groups that use the public schools in the off-hours, only a very minuscule percentage are religious congregations. The city says that in April 2012 “nearly 100 congregations were seeking permits to hold worship services in City schools.”
Second, the City’s lawyers said that because the Bronx Household of Faith has completed the building of its own church building that it no longer needed to hold weekly worship services in school property. Therefore, the church had lost its legal right (called “standing “) in the U.S. Supreme Court to contest the city’s policy. The city claimed in its brief that the church faced no threat to it operations in the future. However, the church had already publicly announced Easter Services in the public school across the street because the new church building cannot hold the above average crowds.
Third, the brief argued that even if the church has a right to a public hearing at the U.S. Supreme Court that it should lose its case anyway. Repeating its previous arguments, the City said that its regulation against worship services wasn’t a restraint on the free exercise of religion or religious speech because the church could act and speak religiously at any number of venues outside of the schools.
There is sometimes a tension in the constitution, the City brief argued, between the prohibition against the establishment of a state-endorsed religion and the free exercise of religion. Some religious practices, like worship services, and at some places, like public schools, seem to implicitly say “state endorsed religion.”
Further, allowing all types of religious practices in the schools might not be practical. The City brief argued its case using a somewhat obscure twist to a recent Supreme Court decision to allowing a town council in upstate New York to have mostly Christian clergy to offer opening prayers because few other clergy of a different religion live in the area. The city said that the New York City public schools can prohibit worship services “simply because all religions do not hold them.”
Finally, perhaps with an eye on the recent beginning of court hearings this week on the Muslim suit against the New York Police Department, the City denied that it was spying on the churches in order to determine whether they were actually holding worship services.
For the first time the City publicly filled in some details to the claim that it allowed no Department of Education staff to make a theological judgment about what is “a worship service.” The City’s legal brief vaguely admitted that the staff could “look beyond the four corners of the application to confirm that the applicant’s characterization of its activity” as a non-worship service was consistent with other statements. The city argued that the staff members had legitimately searched websites, flyers and other publicly distributed materials.
Then, in a non sequiter the City lawyers claimed that the staff members were not authorized to make any independent judgment about whether any worship service was being held. It seems that the churches might get into trouble if they loosely talked about a prayer meeting featuring “worship and praise” before the prayer meeting took place. However, the City has consistently kept very vague about how it makes its judgments.
“Every community group in New York City is welcome to rent empty school buildings except for one purpose: worship services,” said the church's counsel Jordan Lorence of the Alliance Defending Freedom about the court decision being appealed to the Supreme Court. “The worship services of many religious organizations and churches serve as the point through which they can provide help and hope to the poorest communities. There is no reason why they should be targeted for exclusion.”
Mayor offers a carrot to the religious groups: up to $8 million for afterschool programs
On Wednesday the mayor and Bill Chong, his commissioner for the Department of Youth and Community Development, announced that the city was awarding $8 million to faith-based and community groups for running Middle School afterschool programs.
“With thousands of new seats added for our City’s youth at diverse non-public schools and community centers citywide,” De Blasio said, “more of our parents and families can rest assured their children have positive alternatives during a key period of their lives.”
Chong enthused that “These high-quality providers represent some of the many faces and faiths in New York City, and will offer positive programming that is educational, engaging and fun, so that young people can make the transition from early adolescence to becoming responsible young adults.”
City Council member Chaim Deutsch, who looks after the interests of the many Jewish schools in the city as well as other non-public schools by other faith groups, was highly supportive of the mayor’s initiative. He said, “I am grateful to Mayor de Blasio for expanding this important program to make it available to more children all over the city, particularly many of our diverse non-public school students.”
Among the school-based programs eighteen are run by faith-based groups. The mayor’s press release said:
“Eight are operated by nonprofits in Catholic schools in all five boroughs.
Five are in Brooklyn-based yeshivas.
Three are hosted by Islamic schools in Queens and Staten Island.
Two remaining programs are at Greek Orthodox and Seventh Day Adventist schools in Queens.”
Other faith-based programs will run afterschool programs at centers apart from any other school program.
List of the faith-based grantees:
Hebrew Educational Society (9502 Seaview Avenue)
Pastor-Edwin Malave Justiniano, New Church Intl
Be’er Hagolah Institutes (671 Louisiana Avenue)
Council of Jewish Organizations of Flatbush, Inc. (Bais Yaakov of Boro Park)
Council of Jewish Organizations of Flatbush, Inc. (Masores Bais Yaakov)
Play Study Win, Inc. (St Catherine of Genoa/St Therese of Lisieux Catholic Academy)
Yeshiva Kehilath Yakov (206 Wilson Street)
Yeshiva Kehilath Yakov (Bnos Yaakov)
Apex for Youth, Inc. (Corpus Christi School)
Directions For Our Youth, Inc. (St. Aloysius School)
Grand Street Settlement, Inc. (St. Brigid School)
Play Study Win, Inc. (Manhattan Christian Academy)
Council Of Peoples Organization, Inc. (Razi School)
DIVAS for Social Justice, Inc. (Linden Seventh Day Adventist School)
Greater Ridgewood Youth Council, Inc. (Saint Adalbert School)
HANAC, Inc. (Saint Demetrios, Greek -American Day School)
Play Study Win, Inc. (Al-Ishan Academy)
NY Tibetan Service Center, Inc. (30-81 Steinway Street)
Brienza’s Educare (Miraj Islamic School)
Directions For Our Youth