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April 4, 2014
  Bronx Household v. Board of Education
Case Name: Bronx Household v. Board of Education

Headline: Second Circuit Reinstates New York City Board of Education's Restriction on the Use of School Facilities for Religious Worship

Area of Law: Constitutional

Issue(s) Presented: Whether a New York City Board of Education regulation that makes school facilities available outside of school hours for use by outside groups, but prohibits such facilities' use for religious worship services, violates the Establishment Clause or the Free Exercise Clause.

Brief Summary: The New York City Board of Education has been involved in longstanding litigation over its policy of making school facilities available for after-hours and weekend use by outside entities, while limiting such usage for religious purposes. The current version of its policy provides that no permits shall be granted to outside entities seeking to use school facilities for "the purpose of holding religious worship purposes." The Bronx Household of Faith, which had previously unsuccessfully challenged this policy on Free Speech grounds, sought a preliminary injunction on grounds that the policy violated the Free Exercise Clause. The United States District Court for the Southern District of New York granted the requested injunction, but the Second Circuit reversed, holding - in its sixth ruling on this controversy - that the policy violated neither the Free Exercise nor the Establishment Clauses of the First Amendment. To read the full opinion, please visit:

Extended Summary: Regulations promulgated by the New York City Board of Education allow outside groups to use school facilities outside of school hours, without requiring them to pay rent. The regulations specify, however, that "No permit shall be granted for the purpose of holding religious worship services, or otherwise using a school as a house of worship."

The Bronx Household of Faith, which has long sought to hold worship services in New York City public school facilities, challenged its exclusion in 2007 (after previously challenging earlier versions of this rule). It was successful in the United States District Court for the Southern District of New York, which ruled that the regulation violated the Free Speech Clause of the First Amendment. The Second Circuit, however, reversed this ruling and held that the regulation did not violate Bronx Household's free speech rights.

On remand to the district court after the Second Circuit vacated its previous victory, Bronx Household again moved for a preliminary injunction against enforcement of the regulation prohibiting worship services. Bronx Household argued that the prior ruling had only focused on its Free Speech argument, and had not passed on its separate Free Exercise argument. The district court ruled in its favor, holding that the exclusion of religious worship services violated both the Free Exercise Clause and the Establishment Clause. The district court thus enjoined the regulation once again.

The Second Circuit, however, again reversed the district court's ruling, thus lifting the injunction and permitting the regulation to be enforced. The Second Circuit held that (1) "the Free Exercise Clause does not entitle Bronx Household to a grant from the Board of a subsidized place to hold religious worship services;" and (2) the district court erred in concluding that the regulation had violated the Establishment Clause by "compel[ling] the Board to become excessively entangled with religion by deciding what are religious worship services." As to the Free Exercise claim, the court explained that the regulation was treating all religions equally and that the Board's only motivation had been to "protect itself against reasonable Establishment Clause challenges" by declining to provide rent-free premises for religious worship services. As to the Establishment Clause issue, the Second Circuit reasoned that the Board was not violating the Establishment Clause merely by assessing whether a specific group was conducting religious worship services; rather, this Clause "at times compels government officials to undertake such inspection in order to draw constitutionally necessary distinctions," and in any case, the Board's policy "is to rely on the applicant's own characterization as to whether the applicant will conduct religious worship services."

Accordingly, the Second Circuit vacated the injunction imposed by the District Court of the Southern District of New York, allowing the Board's regulation to remain in effect. Judge Walker dissented, as he had done in the prior Second Circuit opinion, reiterating his conclusion that the policy violated the Free Speech Clause, and also arguing that it violated the Free Exercise Clause. Judge Walker concluded that both the Free Speech and the Free Exercise issues were "ripe for Supreme Court review."

To read the full opinion, please visit:

Panel: Judges Walker, Leval, and Calabresi

Argument (if known): 11/19/2012

Date of Issued Opinion: 04/03/2014

Docket Number: 12-2730-cv

Decided: Reversed.

Case Alert Author: Sophia Sofferman

Counsel: Jordan W. Lorence, (Joseph P. Infranco, Alliance Defending Freedom, Washington, DC; David A. Cortman, Alliance Defending Freedom, Lawrenceville, GA; David J. Hacker, Heather Gebelin Hacker, Alliance Defending Freedom, Folsom, CA, on the brief), Alliance Defending Freedom, Washington D.C., for Appellees - Plaintiffs.

Jane L. Gordon (Edward F.X. Hart, Jon Pines, Lisa Grumet, Janice Casey Silverberg, Charles Carey, on the brief), of counsel, for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, NY, for Appellants - Defendants.

Author of Opinion: Judge Leval (majority); Judge Walker (dissent).

Case Alert Circuit Supervisor: Emily Gold Waldman

    Posted By: Emily Waldman @ 04/04/2014 10:21 AM     2nd Circuit  

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