Plaintiff is an evangelical Christian church founded in 1971 and located in the Bronx, New York. The legal battle between Plaintiff and the New York Board of Education (the “Board”) started from 1994, when Plaintiff applied to use space in one middle school in the Bronx, New York, for its Sunday morning church services. According to Plaintiff's application, its services would include "singing of Christian hymns and songs, prayer, fellowship with other church members and Biblical preaching and teaching, communion, [and] sharing of testimonies," followed by a "fellowship meal," during which attendees ''talk to one another, [and] share one another's joys and sorrows so as to be a mutual help and comfort to each other."
Under New York State law, a local public school district may permit its facilities to be used outside of school hours for purposes such as "social, civic and recreational meetings and entertainments, and other uses pertaining to the welfare of the community," as long as the uses are "nonexclusive and ... open to the general public." N.Y. Educ. Code § 414(1)(c). Pursuant to this provision, New York City's Department of Education developed a written policy governing use of school facilities during after-school hours as part of its Standard Operating Procedures Manual (“SOP”). The policy, or SOP, permits outside groups to use school premises for the purposes described in the state law, when the premises are not being used for school programs and activities, but subject to limitations. In earlier stages of this litigation, SOP § 5.9 prohibited the use of school property for "religious services or religious instruction.” Bronx Household of Faith v. Community School District No. 10 (Bronx Household I), 127 F.3d 207, 210 (2d Cir. 1997). The Board denied Plaintiff's application under SOP § 5.9.
Plaintiff brought suit against the Board under 42 U.S.C. § 1983 in the U.S. District Court for the Southern District of New York, Foley Square Division, contending that the Board's denial of its application constituted viewpoint discrimination in violation of the Free Speech Clause of the First Amendment. The district court granted the Board's motion for summary judgment, and dismissed the suit. The Court of Appeals for the Second Circuit (Judge Roger J. Miner) affirmed, concluding that the Department of Education had created a limited public forum by opening school facilities only to certain activities, and that the exclusion of religious services and religious instruction was viewpoint-neutral and reasonable in light of the forum's purposes. Bronx Household I, 127 F.3d at 211-15, 217.
In 2001, however, the United States Supreme Court ruled in Good News Club v. Milford Central School, 533 U.S. 98 (2001), that it was unconstitutional for a public school district in Milford, New York, to exclude from its facilities "a private Christian organization for children," which had requested permission to use space in a school building after school hours to sing songs, read Bible lessons, memorize scripture, and pray. The Milford district's policy, in accordance with New York state law, permitted school facilities to be used for "social, civic and recreational meetings and entertainment events, and other uses pertaining to the welfare of the community." However, it prohibited use "by any individual or organization for religious purposes," which school district officials interpreted as prohibiting ''religious worship" or ''religious instruction." The Supreme Court concluded that the Good News Club was seeking to "address a subject otherwise permitted [in the school], the teaching of morals and character, from a religious standpoint," and, therefore, the school district's denial of the club's application constituted impermissible viewpoint discrimination in the context of a limited public forum.
After the Supreme Court's decision in Good News Club, Plaintiff applied again, and its application was again denied. Bronx Household of Faith v. Board of Education of the City of New York (Bronx Household II), 331 F.3d 342, 346-48 (2d Cir. 2003). Plaintiff brought a new action, and this time the district court, citing Good News Club, preliminarily enjoined the Board from denying the permit. Bronx Household of Faith v. Board of Education of the City of New York, 226 F. Supp. 2d 401 (S.D.N.Y. 2002). The Court of Appeals (Judge Richard J. Cardamone) affirmed the preliminary injunction, finding that the district court did not abuse its discretion, and acknowledging the "factual parallels between the activities described in Good News Club and the activities at issue in the present litigation." Bronx Household II, 331 F.3d at 354. After the issuance of the preliminary injunction, Plaintiff applied for, and was granted, permission to use P.S. 15 in the Bronx for its Sunday "Christian worship service[s]." Bronx Household III, 492 F.3d at 94, 101 (Calabresi, J., concurring).
Plaintiff thereafter moved for summary judgment to convert the preliminary injunction into a permanent injunction, and the Board cross-moved for summary judgment. During the pendency of the motions for summary judgment, the Board wrote to the district court asking the court to adjudicate the issue under a revised SOP, numbered SOP § 5.11,3 which was intended to replace the old standard. The Board advised that the new SOP § 5.11 had been "approved at the highest levels of the Department of Education" and that if Plaintiff were to reapply, its application would be rejected under the new SOP § 5.11. The text of the new SOP § 5.11 prohibited use of school property for "religious worship services, or otherwise using a school as a house of worship.'''' The district court, after initially expressing doubt about its jurisdiction to rule on the constitutionality of a rule whose status was unclear and which had not been applied against Plaintiff, nevertheless concluded that the question was justiciable and granted summary judgment in favor of Plaintiff, permanently enjoining the Board from enforcing the proposed SOP § 5.11. Bronx Household of Faith v. Board of Education of City of New York, 400 F. Supp. 2d 581, 588, 601 (S.D.N.Y. 2005). The district court concluded that its decision was compelled by the Supreme Court's decision in Good News Club.
On appeal, a majority consisting of Judge Guido Calabresi and Judge Pierre N. Leval, over dissent by Judge John M. Walker, Jr., vacated the permanent injunction, although the Court of Appeals was divided as to the rationale for doing so. Bronx Household III, 492 F.3d at 91 (per curiam). Judge Calabresi would have reached the merits and would have ruled that the proposed SOP § 5.11 was a reasonable, viewpoint-neutral, content-based restriction. Judge Leval concluded that litigation over the constitutionality of the proposed SOP § 5.11 was unripe for adjudication. This was because the proposed rule, although "approved at the highest levels," had not been promulgated by the Board, and Plaintiff had neither applied, nor been refused, under the new standard. Judge Walker wrote in dissent that he would have reached the merits and would have ruled that enforcement of the new SOP was barred by Good News Club, because in his view it constituted impermissible viewpoint discrimination. The Court of Appeals remanded the case to the district court for all purposes.
In July 2007, shortly after the decision remanding the case, the Board adopted the proposed SOP and published it for the first time. Plaintiff applied to use P.S. 15 under the new rule, stating in its application that it planned to use the facilities for "Christian worship services," and the Board denied the application. Both parties then moved for summary judgment. The district court again granted summary judgment in favor of Plaintiff and permanently enjoined the Board from enforcing SOP § 5.11 against Plaintiff, adopting the reasoning of its previous opinion.
The case was then before the Court of Appeals for the fourth time. On June 02, 2011, the Court of Appeals (Judge Pierre N. Leval) reversed the judgment of the district court and vacated the injunction barring enforcement of the rule against Plaintiff.
At the date of this writing, no writ to the U.S. Supreme Court has been sought.Xin Chen - 06/22/2011