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The New York City Board of Education’s refusal to allow a Bronx religious group to hold Sunday worship and other activities at a middle school runs afoul of the U.S. Supreme Court’s most recent interpretation of the First Amendment, a Southern District of New York judge has ruled. Judge Loretta Preska granted a preliminary injunction in favor of The Bronx Household of Faith in a long-running and extensively litigated dispute over access to Middle School 206(B). In light of a 2001 U.S. Supreme Court case, Preska said the group had demonstrated “a substantial likelihood of success in showing that the school district’s rejection of plaintiffs’ application violates their First Amendment free speech rights.” The Household of Faith first sued the board of education in 1995, challenging its policy both on the use of school facilities and New York Education Law � 414, which prohibits the rental of school property for religious worship. Preska granted summary judgment for the board of education in the case, The Bronx Household of Faith v. Board of Education of the City of New York, 01 Civ. 8598. She said that the school district had created a limited public forum, and its regulation of expression was “related to the legitimate government concern of preserving and prioritizing access to the Middle School primarily for educational purposes and secondarily, for nonexclusive public and community activities.” Preska’s decision was affirmed by the 2nd U.S. Circuit Court of Appeals, and the U.S. Supreme Court declined to hear the case. But in 2000, the 2nd Circuit decided The Good News Club v. Milford, 202 F.3d 502, in which it upheld summary judgment for a school district that had refused a Christian youth organization’s request to use school property. This time, the U.S. Supreme Court took the case, and in an opinion authored by Justice Clarence Thomas, the Court reversed the 2nd Circuit. Agreeing that Milford had created a limited public forum, Justice Thomas said the school district had allowed school buildings to be used for events “pertaining to the welfare of the community,” including “the development of character and morals from a religious perspective.” “What matters for purposes of the Free Speech Clause is that we can see no logical difference in kind between the invocation of Christianity by the Club and the invocation of teamwork, loyalty, or patriotism by other associations to provide a foundation for their lessons,” Thomas wrote. “According to the Court of Appeals, reliance on Christian principles taints moral and character instruction in a way that other foundations for thoughts or viewpoints do not. We, however, have never reached such a conclusion.” Armed with the Supreme Court’s decision in Good News, the House of Worship returned to Judge Preska, who said that another look at the situation is justified because of a change in the law. “Here, like in Good News Club, the Church’s proposed activities cannot be categorized as ‘mere religious worship, divorced from any teaching of moral values’ or other activities permitted in the forum,” she said. “Certain activities the Church seeks to engage in are ‘quintessentially religious,’ e.g., prayer and communion … and, if conducted in isolation, could arguably fall within the category of mere religious worship.” However, the other proposed activities, she said, “are clearly consistent with the type of activities previously permitted in the forum and consistent with activities expressly permitted” by the school district, such as social, civic and recreational activities. The problem, Preska said, was that the analysis cannot be conducted in isolation. The school board had argued that the Good News Club does not apply because, as the judge said, “the present case involves worship and the Court of Appeals in Bronx Household found that worship is different in kind from other activities allowed in the limited public forum.” “First, the argument that plaintiffs activities should not be analyzed according to their component parts is precluded by Good News Club,” she said. “As noted above, the majority dismissed attempts to bale the activities there at issue but concluded that regardless of the label applied, ‘what matters is the substance of the Club’s activities.’” Second, she said, “defendants’ position that religious services or worship are distinct activities not comparable to other activities in the limited public forum is also precluded by Good News Club.” The Court in Good News Club, she said, reaffirmed prior cases holding “that speech discussing otherwise permissible subjects cannot be excluded from a limited public forum on the ground that the subject is discussed from a religious viewpoint.” And while the defendant school board argued that the worship in this case is different because the discrete activities are “linked by ceremony and ritual … and may involve rituals with special significance for a particular religious faith,” Preska did not accept the distinction. The record, she said, “reflects use of pubic middle school facilities by various groups that also engage in ceremony and ritual of particular significance to the group.” For example, the formal opening ceremony of the Boy Scouts in which scouts pledge to do “my duty to God and my country.” “To the extent that the School District’s denial of plaintiffs’ application was based on their including ceremony and ritual … it was apparently because the ceremony and ritual involved is religious ceremony and ritual,” Preska said. “Such an exclusion runs afoul of the Court’s holdings in Good News,” and other cases holding “that the government may not treat activities that are similar to those previously permitted as different in kind just because the subject activities are conducted from a religious perspective.” The board of education, she said, argued that “plaintiffs propose to engage in an activity labeled ‘worship’ that is different in kind from other activities permitted by the School District … .” TWO QUESTIONS That argument presented two questions, she said. The first was, “can one distinguish between viewpoint discrimination and discrimination based on content when the subjects include religion, prayer, character, morals and the welfare of the community and the like, on the one hand, and worship on the other?” Here, Judge Preska found the distinction “impossible” to make, and noted the Supreme Court’s own “difficulty in distinguishing religious content from religious viewpoint where morals, values and the welfare of the community are concerned.” The second question raised by the argument was, “May the government engage in such analysis consistent with the First Amendment?” Preska answered with a “resounding ‘no.’” The government may not, she said, “consistent with the First Amendment, engage in dissecting speech to determine whether it constitutes worship.” “Here, in order to execute its policy of prohibiting worship but permitting discussion of religious material or material that contains a religious viewpoint … the School District would be required to dissect and categorize the substance of plaintiff’s speech during their four-hour meeting … ,” she said, and determine at what point the Household of Faith’s protected activities “become unprotected worship.” Preska then rejected the board of education’s claim that allowing Sunday worship would violate the Establishment Clause: “In short, it can hardly be said that plaintiffs’ proposed meetings would so dominate M.S. 206B that children would perceive endorsement by the School District of a particular religion.” Assistant Corporation Counsels Jeffrey S. Dantowitz and Lisa Grumet represented the board of education and New York City. Grumet said of Wednesday’s ruling: “We adamantly feel that the Constitution does not mandate that public schools be opened for religious services. Because religious services are different from any other activity that takes place in the schools, in our view excluding them does not violate the First Amendment. The board of education has a long tradition of neutrality toward the city’s many religious faiths, and it would be inappropriate to appear to be favoring one faith over another. In addition, we believe that allowing religious services in the public schools would violate the Establishment Clause. We will look at all options regarding this case going forward.” Representing the Household of Faith were Jordan Lorence and Benjamin W. Bull of the Alliance Defense Fund Law Center; Joseph P. Infranco of Miglibre & Infranco of Comack, N.Y., and Rena Lindevaldsen of Esanu, Katsky, Korins & Siger in Manhattan.

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