December 5, 2011
By refusing the church’s latest appeal in Bronx Household of Faith v. New York City Board of Education, 11-386, the United States Supreme Court today gave a final judicial green light to the Department of Education’s controversial ban on renting schools for religious services.
While only persuasive nationally, the now-final Second Circuit ruling settles matters for multiple states within this judicial circuit (New York, Vermont, and Connecticut) but only affects those districts that want to start prohibiting services (probably few, but includes New York City).
Haven’t we been here before? In 1998, the high court declined review of a similar Second Circuit Court of Appeals ruling. And, despite these decisions and others along the way, since 2002 Bronx Household of Faith has been holding services in P.S. 15 in the Bronx. The DOE estimates that dozens of churches now rent space for Sunday services, despite courts approving Chancellor’s Regulation D-180, Section 1(Q), prohibiting the practice. Can this really be the end?
The DOE says so, releasing a statement from a senior city lawyer within hours of today’s decision that declares “Sunday, Feb. 12, 2012, is the last day that churches and other groups can use the schools for worship.”
I am taking that with a grain of salt. This controversy has raged for over a decade and most legal observers thought Bronx Household of Faith had a good chance of winning this latest round. Since the Supreme Court upheld the federal Equal Access Act in Good News Club v. Milford, 533 U.S. 98 (2001), public schools have had to treat secular and religious groups similarly in renting their facilities. As an extracurricular organization, the Good News Club was clearly conducting worship, much as a chess club would pursue its core activity, theorized the court, and, under the First Amendment, schools could not discriminate on the basis of this content.
The Second Circuit, which had sided with the district in Good News Club, clearly again fought against the tide in Bronx Household of Faith, arguing that the DOE could still decide against a church’s regular conduct of services on Sundays. Not that the DOE was required to bar the church, but it could if, in its judgment, the arrangement blurred the distinction between church and state:
The Supreme Court has never ruled on whether permitting the regular conduct of religious worship services in public schools constitutes a violation of the Establishment Clause, and we reach no conclusion on that question. As discussed above, considering all the circumstances, we think the risk that permitting the regular conduct of worship services in public schools would violate the Establishment Clause is sufficiently high to justify the Board’s adoption of a content restriction that prohibits the performance of such services but does not otherwise limit the expression of religious viewpoints. slip opinion at pp. 32 -33.
Thus the Second Circuit engaged in judicial hair-splitting to reach a conclusion at odds with the controlling Good News Club precedent. So it came as a surprise that the Supreme Court denied the church’s appeal. While creating no binding precedent, the action allows the circuit court ruling to stand, preserving the DOE’s discretion to ban rental of schools for worship.
However, this will not stop the political wheels from turning. Under the Second Circuit’s decision, the DOE can giveth as well as taketh away. So the evangelical community and its allies will likely pressure elected officials, including the mayor, to rescind the Chancellor’s Regulation D-180 ban. It’s been a long time on the books. So long that the mayor might well decide that it’s time to take another look at the rule based on legal precedents and a popular drift away from strong church/state separation.
Recently, Mayor Bloomberg opined on protesters’ right to erect tents in Zuccotti Park. With today’s decision in Bronx Household of Faith, the mayor has yet another chance to put his mark on an important First Amendment issue.