New York’s Debate on Church and State

New York’s Debate

on

Church and State

 

 

 

Cherise T. Ahay

Senior Legal Seminar

Professor Donsky

Culmination Paper

May 14, 2012

 

Faith:

            Faith is an aspect of human life that people often possess in order to continue with their lives during good times and bad.  Exercise of this faith manifests itself in a multitude of ways.  For some, people may exercise their faith in the form of independent worship.  For others, people may exercise their faith by congregating in churches, mosques, temples or other types of faith based communities. Church officials may not be able to afford a free-standing church or feel they can reach out to more people in a given community by the use of preexisting public spaces, sometimes within schools after school hours, in order to conduct their services and exercise their faith.

However, as of late, the ability of congregations to conduct worship services and exercise their faith after school hours has come under fire in the state of New York. This turmoil has inspired litigation and has affected administrative agency regulations.  Cases have weighed in on the issue of the constitutionality of schools allowing or denying congregations from holding religious services and other types of religious exercise on school premises after school hours.

There have been many interpretations of the statutes governing what appears to be a fusion of church and state in New York.

Rules and Regulations:

“The State of New York authorizes local school boards to adopt regulations governing the use of their school facilities. In particular, N.Y. Educ. Law § 414 (McKinney 2000) enumerates several purposes for which local boards may open their schools to public use.” (Good News Club v. Milford Central School 533 U.S. 98, 121 S. Ct. 2093, 150 L.Ed.2d 151 (2001))

In New York City, the government has empowered the Department of Education (formerly known as the Board of Education) with the right to pass regulations that control the school system.  The set of rules that governs the New York City Department of Education, known as Chancellor’s Regulations, is divided into four volumes, from Volume A through Volume D.  Volume D contains the rule relevant to the usage of public school space for private purposes.

Chancellor’s Regulation No. D-180, which contain the rules on Extended Use of School Buildings, (“Ch.Reg.D-180”) replaced a section in the Standard Operating Procedure Manual (the “SOPM”).  More specifically, Ch.Reg.D-180 replaced Section 5.11 of the SOPM.  This section outlines the basis on which schools may have “any individual, Community Based Organization (“CBO” ), or other group using a school building” (“Users”; p. 3 of Ch.Reg.D-180) utilize the school’s space during extended time, which are hours when schools are not in session.

The New York City Department of Education, on March 1, 2012, suspended Ch.Reg.D-180, Section I. Q due to pending litigation on the basis that barring church organizations from utilizing school space when school is not in session is a violation of the Constitution of the United States (the “US Constitution”) and the Constitution of the State of New York (the “NY Constitution”).  More specifically, it is a violation of the free exercise clause and overall, it is discriminatory with respect to religion.  The section of the Chancellor’s Regulation in question prohibited granting permits “for the purpose of holding religious worship services, or otherwise using a school as a house of worship” (ibid).

                The contents of Ch.Reg.D-180, before injunctive relief was granted in Bronx Household of Faith, Robert Hall and Jack Roberts v. Board of Education of the City of New York, Community School District 10 2012 WL 603993 (S.D.N.Y., 2012), seemed to contradict Article One, Section Three of the NY Constitution which states the freedom to “exercise and enjoy religious profession and worship” shall be granted to all without preference or discrimination.  In addition to appearing to contradict the NY Constitution, the US Constitution, in Amendment One, protects citizens from the government creating and/or prohibiting the exercise of religious beliefs and in Amendment Fourteen, Section One, protects citizens from states creating laws that deprive those citizens of rights granted under the US Constitution.  Essentially, Ch.Reg.D-180, appears to conflict with both the “supreme Law of the Land” (Article Six, Clause Two of the Constitution) and the state’s supreme law.

Case Law and Analysis:

            The issue regarding the practice of religious worship on school property after school hours in New York has been debated for some time.   It is an important topic currently because court decisions on this issue have the propensity to displace hundreds of churchgoers who utilize schools for Sunday worship or extended time use.  Some church organizations have been using school spaces for over a decade, such as in the case of Bronx Household of Faith v. B.O.E. of  City of New York.  As of 2008, according to The New York Times, there were sixty churches utilizing public school spaces in order to hold church services (Churches to Lose Use of School Space After a Legal Push Fails, New York Times, December 5, 2011 by Sharon Otterman).

Lewis v. Board of Education 157 Misc. 520, 285 NYS 164, NY Sup. (1935) was a decision  for an action seeking to dismiss the defendant’s defenses in response to an action brought that alleged: (i) the board of illegally allowing the usage of school premises by various religious groups, (ii) attacks the use of holy scriptures in public schools, and (iii) strikes a law as unconstitutional because of the board of education’s exclusion of scripture without notice.   The court denied the plaintiff’s motion citing that found on the basis of religious freedom and the provisions guarding rights of the board of education as elastic which included the allowance of all different groups of people to use the school facilities.

            Another case which ruled in favor of the freedom of the school board was Baer v. Kolmorgen (1958) 14 Misc 2d 1015, 181 NYS2d 230, which found that it was within the law to have Christmas decorations placed in the school during a period where school was not in session.  The decorations were privately paid for and maintained by an independent organization which means that it would not have been the burden of taxpayers.

                It is important to note the similarity between Baer v. Kolmorgen and Bronx Household of Faith et. al v. BOE of the City of New York et. al. The religious aspect of both cases occurs when class is not in session or as the Department of Education refers to it, during extended use hours.     

                The decision of the court in Hsu By and Through Hsu v. Roslyn Union Free School District No. 3 85F.3d 839 C.A.2 (N.Y.), 1996 has acknowledged religious groups within the school and has pointed to Mergens 496 US at 252, 110 S.Ct. 2373 that found “a student-initiated and student-led religious club to meet after school, just as it permits any other student group to do, does not convey a message of state approval or endorsement of the particular religion.”  Through this analysis, if it would not be construed as endorsing or misleading one into believing the building is a church why shouldn’t a religious organization utilize school grounds when school is not in session to conduct it’s worship services?

                Full Gospel Tabernacle v. Comm 979 F. Supp. 214 (SDNY) (1997) was a court case that denied the plaintiff’s request for injunctive relief with respect to a school denying them access to facilities for the purpose of conducting worship services.  Although other religious groups had previously obtained permits for within the district, it was stated that the district erroneously approved the permits due to flaws in the application method.  Using Bronx Household of Faith (1997), the opining judge delineates different forums, under which a school is found to not be a “traditional public forum” or rather a “limited public forum.”

On this ground, the court rejected the plaintiff’s request for an injunction.

Bronx Household of Faith v. B.O.E. of  City of New York is a case that has spanned over a decade.  The plaintiffs currently sought and were temporarily granted injunctive relief against a regulation of the defendants which prohibited granting permits for those who wanted to perform religious services on school premises.

Favorable treatment by the Supreme Court in the matter of in Good News Club v. Milford Central School 533 U.S. 98, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001) encouraged Bronx Household of Faith to continue its legal battle but they were denied certiorari by the Supreme Court.  In  Good News Club v. Milford Central School, Good News Club was denied the right to hold meetings at Milford Central School.  Good News Club sued Milford Central School on the grounds that such denial was a violation of both Amendments One, that guards free speech, and Fourteen, the equal protection amendment, of the Constitution.  Justice Thomas held that the refusal by Milford Central School to allow the Good New Club to meet after hours was unconstitutional and “violates the Club’s free speech.”  The defense given by the respondents that such allowance would violate the Establishment clause of Amendment One of the Constitution was found to be invalid for the facts of this case.

Justice Thomas’ decision was influenced by the 1993 decision in Lamb’s Chapel v. Center Moriches Union Free School District 508 U.S. 384, 113 S.Ct. 2141, U.S.N.Y. (1993).  In this case, the court held that the refusal to allow a religious film to be shown was a violation of Amendment One of the Constitution. Justice White stated that the mere allowance of a religious group to show a film does not constitute an “embrace of a particular religious sect.”

The findings in the prior two cases should be applied to the case of  Bronx Household of Faith et. al v. BOE of the City of New York et. al.  More specifically the decision in  Good News Club v. Milford Central School in which the group attempted to meet for religious methodology that pertain to the “welfare of the community…. and open to the general public.” (Chancellor’s Regulations No. D-180 Section I. H).

As early as the 1950’s, there have been disputes over the legality of giving portions of public spaces to be used for private churches in order to conduct worship services.  Judge Schmidt in Lewis v. Mandeville (1950) 201 Misc. 120, 107 N.Y.S.2d 865 N.Y. Sup. 1951 ruled that it was acceptable and within the NY Constitution to allow two religious groups to temporarily utilize firehouse space to conduct worship services.  The judge did not grant an injunction on the grounds that the plaintiff had no legal right to do so and that allowing those congregations to use the firehouse was legal (79 A.L.R.2d 1148 Use of public school premises for religious purposes during nonschool time, 1961).

Unlike the current case in Bronx Household of Faith et. al v. BOE of the City of New York et. al

the situation between the two churches in the firehouse was temporary whereas Bronx Household of Faith has been a long term occupant and recipient of the services offered by the school to house them.  However, it is important to acknowledge that the church groups in both cases are granted the same ability to meet as any other group that is not in violation of any statutes, for example any discriminatory or acts that would exclude members of the community.  According to the Chancellor’s Regulations “no group or organization, which invites members of the public to a meeting in a school facility, may exclude persons on the basis of any impermissible discriminatory reason as set forth in  Chancellor’s Regulation A- 830.”

Conclusion:

            In reviewing the aforementioned cases, it is imperative to note the discourse in distinguishing preference for a religious entity or a secular entity and equal opportunity for all groups who attempt to utilize school space during hours where school is not in session.  As seen in cases such as Lewis v. Mandeville, there should be no distinction made between allowing the two religious groups to practice versus allowing any other group so long as such approval does not interfere with the “peace or safety” of the state (NY Constitution Article One, Section Three).  Doing so would constitute being discriminatory and/or abridging the rights of others to freely practice their religion in a space where other groups are allowed to exercise their beliefs, irrespective of whether they have a feminist, pro-minority, or any other, peaceful agenda.

On the other hand, as discussed in  Full Gospel Tabernacle, there are different forum categories for which different rules apply, and according to Full Gospel Tabernacle, a school is a limited public forum.

The Constitution is clear in stating that the government can make no laws that create or prohibit others from freely exercising their religion.  The mere renting of space to a church that is sustained by money of parishioners should not normally constitute a conflict.

However, as previous litigation has shown in the Bronx Household of Faith et. al v. B.O.E. Of the City of New York, one must also note the difference between denying a group not because of religious view points or “view-point discrimination” Bronx Household of Faith et. al v. B.O.E. Of the City of New York 650 F.3d 30 C.A.2 (N.Y.), 2011, but because of “content-based exclusion.”  Judges draw a fine line between restricting religious points of view and restricting the act of holding a religious service because of the content of such services and the perception of the school as becoming that of a church.

The Amendments of the US Constitution and the NY Constitution supersede the administrative regulations that are in place in order to protect those who attempt to provide their respective communities with meaningful faith based assistance.

 

References:

Statutes:

Chancellor’s Regulations No. D-180

Constitution of the State of New York

Constitution of the United States

Cases:

Lewis v. Board of Education 157 Misc. 520, 285 NYS 164, NY Sup. (1935)

Lewis v. Mandeville (1950) 201 Misc. 120, 107 N.Y.S.2d 865 N.Y. Sup. 1951

Baer v. Kolmorgen (1958) 14 Misc 2d 1015, 181 NYS2d 230

Lamb’s Chapel v. Center Moriches Union Free School District 508 U.S. 384, 113 S.Ct. 2141, U.S.N.Y.    (1993)

Hsu By and Through Hsu v. Roslyn Union Free School District No. 3 85 F.3d 839, C.A.2 (NY) (1996)

Full Gospel Tabernacle v. Comm 979 F. Supp. 214 (SDNY) (1997)

Good News Club v. Milford Central School 533 U.S. 98, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001)

Bronx Household of Faith, Robert Hall and Jack Roberts v. Board of Education of the City of New        York, Community School District 10 2012 WL 603993 (S.D.N.Y., 2012)

Articles:

http://www.nytimes.com/2011/12/06/nyregion/in-failure-of-legal-bid-churches-set-to-lose-public-school-space.html

79 A.L.R.2d 1148 Use of public school premises for religious purposes during nonschool time, 1961

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