Can the DOE prohibit, after school hours, the use of school facilities for religious ceremonies?

Yes.
The area of the role of the separation of church and state has been no more litigated than in the area of public education. While the Supreme Court has not dealt with the establishment or free exercise clause until the 1930’s, since then, the amount of litigation has geometrically progressed.

Schools, as public buildings, permit the use of their facilities for a variety of purposes for the benefit of the community. When the use of the facilities involve religious organizations the rules become complicated.

In 1994 when Bronx Household applied for a permit to use a local school on Saturday the application was denied by the DOE because it ran afoul of the DOE’s Standard Operating Manual which prohibited school facilities for religious ceremony or instruction. The action to set this aside failed and the Second Circuit, in Bronx Household I dismissed the application.

After Bronx Household I was decided the US Supreme Court decided Good News Club v. Milford Central School, which held that it was unconstitutional for a public school district to exclude from its facilities “a private Christian organization for children,” which had requested permission to use space in a school building after school hours to sing songs, read Bible lessons, memorize scripture, and pray. Bronx Household applied, again, for use of DOE facilities. The DOE denied the application but the court overruled it based on Good News.

The DOE then amended their SOP to state,

No permit shall be granted for the purpose of holding religious worship services, or otherwise using a school as a house of worship. Permits may be granted to religious clubs for students that are sponsored by outside organizations and otherwise satisfy the requirements of this chapter on the same basis that they are granted to other clubs for students that are sponsored by outside organizations.

With this change the DOE, once again, denied Bronx Household’s application and this time the Court agreed. Being a “limited public forum” the DOE had the right of content discrimination but not viewpoint discrimination. While these are legal terms of art they essentially boil down to the idea that the DOE can restrict certain practices but not viewpoint. Religious worship is a type of practice that the DOE can prohibit and thus its denial of the second Bronx Household’s application was proper.

THE BRONX HOUSEHOLD OF FAITH, ROBERT HALL, and JACK ROBERTS, Plaintiff-Appellees, v. BOARD OF EDUCATION OF THE CITY OF NEW YORK and COMMUNITY SCHOOL DISTRICT NO. 10, Defendant-Appellants.,UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, 2011 U.S. App. LEXIS 11107, October 6, 2009, Argued, June 2, 2011, Decided


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