A New York City Department of Education rule blocking off-hours use of school facilities for religious worship services complies with the federal Constitution, a divided panel of the U.S. Court of Appeals for the Second Circuit decided yesterday.

Ruling for the fourth time in a decade on a lawsuit brought by a Christian church in the Bronx, the majority concluded that the rule does not constitute viewpoint discrimination under the First Amendment because it “does not exclude expressions of religious points of view or of religious devotion, but excludes for valid non-discriminatory reasons only a type of activity—the conduct of worship services.”

Judges Pierre N. Leval and Guido Calabresi also concluded that the policy was a genuine attempt by the city to avoid violating the Establishment Clause.

“In the end, we think the Board could have reasonably concluded that what the public would see, were the Board not to exclude religious worship services, is public schools, which serve on Sundays as state-sponsored Christian churches,” Judge Leval wrote.

The ruling in The Bronx Household of Faith v. Board of Education of the City of New York, 07-5291-cv, vacates an injunction against enforcement of the rule—the Department’s Standard Operating Procedure §5.11—by Southern District Judge Loretta A. Preska.

Judge John M. Walker Jr. issued a lengthy dissent in which he called §5.11 “impermissible viewpoint discrimination against protected speech.”

“Bronx Household’s worship services fit easily within the purposes of the Board’s broadly available forum and may not be the object of discrimination based upon the religious viewpoint expressed by the services’ participants,” Judge Walker said. “The Board’s purported Establishment Clause concerns are insubstantial: they are not reasonable, much less a compelling reason for the Board to shut the door on Bronx Household’s protected speech.”

The legal controversy stretches back to 1994.

Since then, there have been multiple district court and circuit opinions, more than one iteration of the Department of Education’s policy on renting space to religious organizations and a game-changing U.S. Supreme Court decision.

In 1994, the church applied to use the Anne Cross Mersereau Middle School in the Bronx for Sunday church services but was denied under then-SOP§5.9, which prohibited using school facilities for “religious services or religious instruction.”

Judge Preska granted summary judgment for the board in 1996 and the Second Circuit affirmed.

But in 2001, the U.S. Supreme Court issued its opinion in another New York case, Good News Club v. Milford Central School, 533 U.S. 98 (2001).

In Good News Club, the high court held unconstitutional a school district’s policy allowing facilities to be used for “social, civic and recreational meetings and entertainment events and other uses pertaining to the welfare of the community,” but barring use “for religious purposes,” a phrase interpreted by school officials as prohibiting “religious worship” or “religious instruction.”

The Supreme Court held this was impermissible viewpoint discrimination in a limited public forum because the Good News Club, in seeking to use the school facility after hours to sing songs, read Bible lessons, memorize scripture, and pray was merely addressing “a subject otherwise permitted [in the school], the teaching of morals and character, from a religious standpoint.”

Bronx Household reapplied for a permit, this time at Public School 15, but was denied again. However, the church won a preliminary injunction in 2002 from Judge Preska in an opinion based on Good News Club (NYLJ, June 26, 2002) and it began meeting at the school later that year. A divided circuit affirmed the following year (NYLJ, June 10, 2003).

Judge Preska later converted the preliminary injunction into a permanent one (NYLJ, Nov. 18, 2005). At that point, according to the record, at least 21 other congregations were using school facilities for Sunday worship—a number that had increased to more than 60 today.

Judges Leval, Calabresi and Walker, splitting along the same lines, vacated that injunction in 2007 (NYLJ July 3, 2007), and the board followed by changing the standard by passing SOP§5.11 to prohibit use of school property for “religious worship services, or otherwise using a school as a house of worship.” The new SOP made no mention of a ban on “religious instruction.”

Bronx Household applied to use Public School 15 and, again citing Good News Club, Judge Preska permanently enjoined application of the rule in Bronx Household of Faith v. Bd. of Educ. City of New York, 01 Civ. 8598 (S.D.N.Y. Nov. 1, 2007).

Excluded ‘Activity’

Oral argument on the appeal was heard in October 2009. In yesterday’s 36-page majority opinion, Judge Leval sought to distinguish the prohibited activity of “services” and the permitted expression of religious views.

“The conduct of religious worship services, which the rule excludes, is something quite different from free expression of a religious point of view, which the Board does not prohibit,” he said. “The conduct of services is the performance of an event or activity…a collective activity characteristically done according to an order prescribedby and under the auspices of an organized religion, typically, but not necessarily conducted by an ordained official of the religion.”

He added, “The conduct of a ‘religious worship service’ has the effect of placing centrally, and perhaps even of establishing, the religion in the school. There is an important difference between excluding the conduct of an event or activity that includes expression of a point of view, and excluding the expression of that point of view.”

SOP§5.11 may bar religious worship, he said, but it “does not exclude religious groups from using schools for prayer, singing hymns, religious instruction, expression of religious devotion, or the discussion of issues from a religious point of view.”

Indeed, Judge Leval said, the school board, trying to comply with Good News Club, passed a rule that “expressly permits use of school facilities by ‘religious clubs for students that are sponsored by outside organizations,’” on the same basis as other student clubs.

The majority then concluded the exclusion was reasonable in light of the purpose served by the forum.

“When worship services are performed in a place, the nature of the site changes,” Judge Leval said. “The site is no longer simply in a room in school being used temporarily for some activity. The church has made the school the place for the performance of its rites, and might well appear to have established itself there.

“The place has, at least for a time, become the church,” he said, and the board was reasonable to be concerned it would be subsidizing churches if it opened up school facilities.

Moreover, he said, “the fact that school facilities are principally available for public use on Sundays results in an unintended bias in favor of Christian religions, which prescribe Sunday as the principal day for worship services.”

‘Feel of Rhetoric’

In his 28-page dissent, Judge Walker faulted “the majority’s attempt to differentiate between the conduct of an event, here labeled ‘services,’ and the protected expressive activity of the sort recognized in Good News Club.”

“The majority turns its back on the Supreme Court’s holding in Good News Club that it is viewpoint discrimination for a school to exclude what is effectively ‘an evangelical service of worship’ from a limited public forum that in every material respect is identical to the forum that the Board established in this case.”

Judge Walker also could not disagree more that allowing worship on Sundays transforms P.S. 15 into a church.

“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,” he said. “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.”

Jane L. Gordon, senior counsel with the Law Department’s Appeals Division, argued for the city defendants.

“The department is quite properly concerned about having any school in this diverse city identified with one particular religious belief or practice,” Ms. Gordon said. “The decision is a victory for the city’s school children and their families.”

Jordan W. Lorence of the Alliance Defense Fund in Washington, D.C., argued for the Bronx Household of Faith.

Mr. Lorence said the Bronx Household case is far from over.

“We are definitely going to appeal and the only question we have not decided is whether to go en banc to the Second Circuit or go directly for a certiorari petition at the Supreme Court. We’re going to do one or the other,” he said. “I would just say the decision is wrong on so many parts, it’s disappointing.”

According to its website, the Bronx Household of Faith purchased an empty lot in 1994 to construct a church. So far, the congregation has raised $1.2 million toward the $2 million construction project.