No More Religious Services in NYC Public Schools

It’s official: Religious organizations can no longer use NYC public schools to hold worship services after hours.

The legalese: The Supreme Court recently declined to review a Second Circuit decision, Bronx Household of Faith v. Board of Education of the City of New York, which upheld New York City Standard Operating Procedure (SOP) § 5.9 (now SOP § 5.11), which prohibited the use of school property for religious services.

 

 

What’s really going on: In 1994, the Bronx Household of Faith (BHF) applied to use space in a public school for its Sunday morning church services.  Their application was denied because of something called SOP § 5.9.  The BHF brought suit in federal court… and their suit was dismissed.  This dismissal was later affirmed by the Second Circuit.

Then, however, the Supreme Court held in Good News Club v. Milford Central School (PDF) that it was unconstitutional for a public school district to exclude from its buildings a religious organization that planned to use the space to teach religious morals to school-aged children through the use of song, verse memorization, and lessons.  The Court held that such exclusion amounted to “viewpoint discrimination,” because the district otherwise permitted use of the space “for the teaching of morals and character,” and was excluding the plaintiffs solely on the basis of their religious affiliation.

After this decision, BHF reapplied for a permit, was again denied, and again brought suit in federal court.  This time, the district court issued a preliminary injunction against the Board forbidding them from denying the permit.  The Second Circuit affirmed that preliminary injunction.  When BHF petitioned for summary judgment (hoping for a permanent ruling in their favor, rather than a temporary injunction), the district court cited the decision in Good News Club and BHF succeeded: they were able to use school space for their services.

The Board then appealed to the Second Circuit.  (Seeing a pattern here?) The Second Circuit held that the Board was allowed to exclude BHF in spite of the Supreme Court’s decision in Good News Club. According to the Second Circuit, in cases like Good News Club, “the policy being enforced categorically excluded expressions of religious content. Here, by contrast, there is no restraint on the free expression of any point of view. Expression of all points of view is permitted. The exclusion applies only to the conduct of a certain type of activity — the conduct of worship services — and not to the free expression of religious views associated with it.”

Put differently, the Second Circuit accepted the SOP because it prohibited an activity (worship services) and not a viewpoint (Christianity, Christian morals, etc.).

To be blunt, I was shocked when I first read this case.  I’m still a little shocked because, to me, the distinction between the activity of worship and the expression of Christian viewpoints sounds incredibly thin (especially considering that the activities at issue in Good News Club included singing).  Where do you draw the line?  If your group is teaching religious morals, then you’re good to go.  But what if you’re teaching religious morals AND singing or praying?  Does the activity cross over into “worship” as soon as a more overt act, like singing, genuflecting, etc. takes place?

According to the Second Circuit, “A worship service is an act of organized religion that consecrates the place in which it is performed, making it a church.”  That doesn’t really help too much with the line-drawing, but what comes next actually makes me pretty happy: The court expresses concern that allowing such services in public schools will “promote a perception of endorsement.” This is excellent news!  The court is concerned that allowing worship services in public schools will cause people to think that the government is pro-religion, or that religion is the right way to go.  And honestly, I usually assume that this is exactly what the government thinks. (I’m not entirely wrong here, either: the United States Department of Justice filed an amicus brief supporting BHF.)  Maybe I’m being overly optimistic, but it seems that we have here a court saying: Hey!  It is important for people to understand that the government isn’t tilting the scales in favor of religion!  It’s cool with us if you’re not religious, and we don’t want you feeling like we favor those who are.

This puts me in a good mood.  Now if only we could do something about those tax breaks…

About katherine

Born in Texas, Katherine is now a lawyer in the northwestern United States.

  • Anonymous

    Reading further into the decision is what convinced me that it was a good call.  They determined that because the school was busy on Saturdays, Muslim and Jewish groups could  not rent the facilities for services, which gave the school *the appearance* of being a Christian-only worship space.

    From my reading, that was one of the important factors.  Not only can the government not endorse a certain religion, it can’t *look* like it is, even if it isn’t.

    I was a little iffy on the decision until I read that part.  From this light, it makes a lot more sense.

  • Anonymous

    Where I live, almost every public high school auditorium is rented out to evangelical Christian churches on the weekends (both Saturday and Sunday) to conduct full-on worship services.   The churches proudly advertise with large signs and placards on the nearby streets and at intersections.  This is in a town that already has a large church or mega-church on virtually every street corner.  I’ve been trying to figure out why this is necessary and  how this is legal since I moved here.

    • http://www.patheos.com/blogs/friendlyatheist/ Hemant Mehta

      If they’re paying fair rent, I don’t see a problem, as long as other groups also have access to the facilities.

      • Anonymous

        These are evangelical Christian churches that essentially have a long-term lease on public high school facilities.  It’s always the same church at each school, and it’s always evangelical Christians.  In the years I have lived here, there has never once been a mosque, a synagogue, or even any kind of secular use of the facilities. 

        I understand that it probably isn’t technically illegal if the school or school district wants to allow a church to use their facilities as long as they are also allowing any other group to use the facilities.  But I have difficulty understanding the legality of this when multiple evangelical church groups have de facto permanent facilities at a public school.  It has the appearance of endorsement to me.

        • http://www.facebook.com/mujica.alex Alejandro Mujica

          Since this privelege to use public schools as after-hours faith-based venues is open to any beliefs in other states, I wonder what the overall reception is if Muslims, Wiccans, or other faith groups wish to share that space. Also, if those groups don’t use public schools for their faith-based education, what are their reasons? Why aren’t they taking advantage of them like the evangelical Christians?

          • notfromvenus

            IIRC, the only religious group that used my high school was a synagogue.  But that was in a liberal area with a big Jewish population. 

            Where I live now, in a small exurban town in MD…. well, there’s a mosque 20 minutes away so I imagine the Muslims would rather go there, but I can’t imagine people would be up in arms about some Wiccans renting a room at the high school.

          • notfromvenus

            Some more thoughts about why Wiccans wouldn’t rent a school space: the pagans I’ve known normally worship on their own or with their family. It’s not a very organized religion(s).

            (Also, a lot of the ones I’ve known believe in the spiritual power of marijuana – not exactly a ritual practice you can get away with in a public school.  ;))

    • Anonymous

      I grew up in rural Virginia and it is the same there.

  • Rieux

    Er, this isn’t really an accurate synopsis of the news you’re delivering:

    It’s official: Religious organizations can no longer use public schools to hold worship services after hours.

    in New York City.

    The school policy at issue here is a NYC-only one. The Second Circuit decision you’re reporting on upheld the policy, which is to say they upheld the power of public school boards within the Second Circuit’s jurisdiction (New York state, Vermont, and Connecticut) to enact similar bans—but that is a far cry from ruling that “Religious organizations can no longer use public schools to hold worship services after hours”!

    • Katherine

      Good call — it’s fixed!

  • http://twitter.com/Victoriaed90 Victoria

    I guess I’m not understanding why this is a problem. They’re using the space after hours and no one is forcing children to attend the services.

  • Anonymous

    I disagree with this both on constitutional and public-policy grounds.  I’m aware that I’m moving from religious freedom to speech freedom here, but it seems to me that the conduct of a religious ceremony is indistinguishable from the expression of a religious point of view.  

    Moreover, I strongly disagree with excluding religious groups from after-hours access to the same facilities that non-religious groups enjoy.  It seems to me that this smacks of discrimination based on religion — again, a no-no when you’re talking about local governments.

    • Coconut

      It’s not like it’s a school club, so why should they have the right to use the building for their religious ceremonies? If they said, ‘Sorry, Bible Club can’t use school after hours, but Art Club can,’ then that would be discrimination. Otherwise, it’s just a no-religion policy.

      • notfromvenus

        I don’t know about this particular school, of course, but at least some schools rent out spots for stuff like driver’s ed schools or aerobics classes during off-hours.  I could see that it might be considered discriminatory to say that religious groups can’t meet but those other groups can.

        • Coconut

          Well, driver’s ed. relates very much to school and to high school students, as most of them would be trying to get their license. I disagree that keeping out ALL religion is discriminatory. And what I mean there is worship sessions like at church, or when a preacher goes on and on, etc. If they have a Bible reading for open discussion about the literature, that would be different. It’s not discrimination for certain kinds of things to be allowed. Religious ceremonies are a kind of thing not being allowed, not particular religions. If you wanted to say not to discriminate against anything as long as they’re paying rent, then what about groups like the KKK? What about orgies?

          It relates to what Kirby_G said below: They didn’t want to only endorse one religion, so they just said no religion.

  • http://heart-nouveau.blogspot.com/ heartnouveau

    I understand the desire to clear away any potential favor or appearance of endorsement of any religious group by the government, and I would support that as well.  However, school auditoriums and gyms make for very natural assembly spaces, especially for religious groups that are just starting out or in a transitional phase. And let’s face it, those big heated spaces just sit empty on Sundays anyway.  A lot of groups need a large space only on one day of the week, so does it really make sense to encourage these groups to build one more church just for that?  It seems wasteful of our resources.  This is an on-going problem for many churches too—many of them end up sharing a building with a daycare or preschool to cut costs.  I’ve been to churches in small old movie theaters, in elementary schools, in former shopping malls, in college lecture rooms—-frankly space is always an issue for church congregations, and many (no, not all–I’m looking at you, outlandish megachurches) are trying to be environmentally and financially responsible with their resources, and with our shared resources.  Is there a way to allow the after-hours repurposing of public assembly spaces for religious groups, without the appearance of public endorsement?

    • notfromvenus

      Maybe they should be required to put a disclaimer on their advertising saying something like “[name of school] does not endorse our church or message”?

      When some new church group sent out flyers a while back saying they were meeting at the local high school, I didn’t think “oh, the school is endorsing them” – I thought “wow, this flyer is really cheesy”. ;)

  • dwasifar karalahishipoor

    Does that mean the Boy Scouts will no longer be allowed to meet at those schools?

    • Coconut

      Is that a religious ceremony, or do they just happen to be religious? There’s a huge difference.

  • Chris

    I fail to see why it’s such a problem, especially with schools havingwith a couple such a budget crunch. If the space is empty and someone (religious or otherwise) wants to pay rent, let them!

    OTOH, my wife’s school used to rent their gym to a variety of groups. They had so many issues with a couple of churches moving stuff around and generally making a mess that they now require a faculty member to be present any time the building is rented. If nobody is willing to do it for free (eg a member of the group) then the group must pay by the hour. That was enough to chase the churches away since no faculty member would take that responsibility. They only have Scouts (both genders) whose leaders are staffers.

  • http://www.facebook.com/joe.zamecki Joe Zamecki

    1 There are a LOT more churches in the average city in the USA than public schools, in some areas by a factor of 20 to 1. They can meet in a church, which oddly enough, seems more fitting.

    2 Conservative Christians have been pushing for a reduction in funding for public schools all over the USA. Rick Perry is just a great example. He slashed public education in Texas, and now there’s this “need” for funding for public schools all of a sudden. It’s a self-fulfilling prophecy so to speak.

    3 Many of these “church” groups that meet at public schools are saving up to buy church buildings anyway.  They’re not really in need this much. 

    4 This is just one among many other types of attempts to push organized religion on public schools. Like the moment of silence, released time, solemnization, and these character-building assemblies held by Christian groups, their act of going into public schools on the weekends is just another way to get in there.

    5 They brag about being able to take over parts of public schools on a regular basis.

    Usually we’re against organized religion in public schools. Remember? ;)

  • Anonymous

    We have a lot of churches here in TN that use schools as meeting places. I checked with FFRF and was told that as long as it was made available to any group and as long as a reasonable rent was charged it was ok. i suspect that around here the churches pay no rent and i bet if an atheist group or buddhist group tried to meet in the high school down the st. from me they would be turned down.

  • Anonymous

    shame on this church group making the Board of ED spend thousands of tax payer dollars that should be going to the children of the Bronx! 

  • Nazani14

    I am in favor of buildings which sit vacant, sucking up utilities a good bit of the time (schools, churches, etc.  ) being used by any and all groups  as long as they are not promoting discrimination.

  • notfromvenus

    I don’t really have a problem with a religious group renting out a room in a public school when students aren’t around, as long as they’re paying for it like anyone else and don’t get any special treatment.  It seems like a good way for the school to make some extra money to buy some new microscopes or whatever.

    The auditorium at my high school was rented out by a synagogue on Saturday mornings, and I can’t say I thought it was much different than any of the non-religious groups (drivers school, karate classes, etc) that used the school during off-hours.

  • Anonymous

    The court ruling is discrimatory…as long as the group is legal and constructive in the community, the school should welcome the additional income…; the government should have no view of religion, pro or con.
    Geo. Fyffe


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