Bronx Household of Faith v. Board of Education
2011 U.S. App. LEXIS 11107
2d Cir.2011Background
- Bus. NYC public schools opened as a limited public forum for community uses; SOP § 5.11 bars use for religious worship services but allows other religious activities and student clubs; Bronx Household sought Sunday worship at PS 15 and was denied under SOP § 5.11; district court granted summary judgment and injunction; this court previously vacated/ remanded; after SOP § 5.11 was adopted and applied, Bronx Household again sought relief; panel held SOP § 5.11 is not viewpoint discrimination and is a reasonable content-based restriction to avoid Establishment Clause concerns.
- Bronx Household previously litigated under SOP § 5.9 (predecessor) and SOP § 5.11 (current); Good News Club and other Supreme Court cases influenced this analysis; the Board’s concern about endorsement and entanglement is central to the Establishment Clause analysis.
- Court analyzed whether the exclusion of worship services from a otherwise neutral forum is permissible without compelling viewpoint discrimination, and whether it furthers the Establishment Clause mitigation.
- Court concluded that SOP § 5.11’s prohibition on religious worship services is a content-based exclusion, not viewpoint discrimination, and is reasonable to avoid Establishment Clause violations; reversed district court and vacated injunction.
- Judge Calabresi concurs in result but provides separate reasoning emphasizing worship is sui generis and that the rule may be unconstitutional as viewpoint discrimination under different reasoning.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SOP § 5.11 discriminates by viewpoint. | Bronx Household argues exclusion targets religious viewpoint. | Board asserts neutral, content-based restriction. | Not viewpoint discrimination; upheld as content-based. |
| Whether excluding worship services is reasonable for forum purposes. | Exclusion not required to meet forum purposes. | Exclusion helps avoid Establishment Clause concerns. | Reasonable in light of forum purposes. |
| Whether the restriction violates Free Speech. | Free Speech is chilled by exclusion. | Content-based restriction preserved for forum integrity. | Not a violation; constitutionally permissible. |
| Whether Lemon framework supports SOP § 5.11. | Lemon requires neutrality and no endorsement. | SOP § 5.11 prevents endorsement and avoids entanglement. | Lemon analysis supports Board; no violation. |
| Whether Bronx Household’s use would create establishment or endorsement risk. | Using school for worship would not imply endorsement. | Regular worship would create endorsement risk. | Board had strong basis to worry about endorsement; permissible.) |
Key Cases Cited
- Good News Club v. Milford Cent. Sch., 533 U.S. 98 (U.S. 2001) (unconstitutional exclusion of after-hours religious activities in school forum; viewpoint discrimination.)
- Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (U.S. 1993) (school denied film series with religious perspective; viewpoint discrimination.)
- Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (U.S. 1995) (university-funded religious publication discriminatory; viewpoint discrimination.)
- Widmar v. Vincent, 454 U.S. 263 (U.S. 1981) (university opened forum to religious speech; protecting speech on religious topics.)
- Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (U.S. 1995) (endorsement concerns in public forums; Lemon framework relevance.)
- Lemon v. Kurtzman, 403 U.S. 602 (U.S. 1971) (establishment clause test with three components: secular purpose, primary effect, entanglement.)
- County of Allegheny v. ACLU, 492 U.S. 573 (U.S. 1989) (establishment concerns based on perception of endorsement in a public display.)