Or rather, an unusual chain of events leading up to a solid ruling. A Federal District Judge in New York has granted summary judgement in favor of a church who was denied the right to rent a public school facility in New York to hold church services on Sundays. Nothing unusual about that, of course. Churches and religious groups are allowed to rent public facilities under the same rules that govern renting to any other group. But this case has gone on for ten years now and I'm a bit baffled by the court's previous rulings. Here are the facts of the case.
In 1994, this church inquired about renting a public school facility in New York to hold church services on Sundays. The school district denied their request, citing their own policy and NY state law prohibiting the renting of facilities for the purpose of religious worship, and the church filed suit. The same judge that just ruled on this case, Judge Loretta Preska, granted a summary judgement in favor of the school district in 1996, saying that the school had created a "limited public forum" and that its rules were "reasonable and related to a legitimate government interest." The appeals court affirmed that judgement in 1997 and the Supreme Court refused cert in 1998.
Fast forward to 2001 to a Supreme Court ruling called Good News Club v Milford. This case involved a similar situation, a private religious group wanting to rent school facilities after hours. In that case, both the district court and the appeals court ruled in favor of the school district and against the Good News Club, but the Supreme Court reversed that decision 6-3, ruling:
"When Milford denied the Good News Club access to the school's limited public forum on the ground that the Club was religious in nature, it discriminated against the Club because of its religious viewpoint in violation of the Free Speech Clause of the First Amendment."
After this ruling came down, the Bronx church re-filed the papers requesting use of the school facility in New York, again was turned down, again filed suit, and this time, in light of the Good News Club decision, the same judge that previously granted summary judgement for the defendants flipped the other way and granted summary judgement for the plaintiffs. More appeals to follow, I imagine, but the church will almost certainly win, as they should in this case.
Here's what I don't quite get about this case. It seems to me that even before the Good News Club ruling, there was a very strong case to be made on behalf of the plaintiffs. Not just a strong case, but in my view an obviously winning case in light of the 1993 Lamb's Chapel decision. The Lamb's Chapel case involved a church that wanted to rent school facilities after hours to show a series of movies on "family values". It involved the very same New York state law on use of school facilities that was invoked by the school district in the Bronx case. And in a unanimous ruling, the court said that if you are going to make school facilities available for outside groups to rent, you cannot discriminate against religious groups and that allowing religious groups to use school facilities is not an establishment clause violation (and the court was correct on both counts).
So here's my question. In light of Lamb's Chapel, why on earth was this judge granting summary judgement in favor of the school's authority to prevent religious groups from renting school facilities? And why would the court of appeals uphold that summary judgement? And why would the Supreme Court refuse cert? Summary judgement should be granted only in the most obvious of circumstances, when the other side has no possibility of winning the case. But there was a very clear precedent in favor of the plaintiffs that ruled on a virtually identical issue involving the very same law being invoked in that case, and that precedent was even a unanimous ruling. I can't imagine the judge was really justified in granting summary judgement in that case. In the Good News Club ruling, the court had even admonished the appeals court for not applying the Lamb's Chapel decision, writing:
Despite our holdings in Lamb's Chapel and Rosenberger, the Court of Appeals, like Milford, believed that its characterization of the Club's activities as religious in nature warranted treating the Club's activities as
different in kind from the other activities permitted by the school.
So why on earth were the courts ignoring the obvious and plain meaning of the Lamb's Chapel ruling? Why did it take Good News Club to finally get the point across to judges down the line that you cannot discriminate between religious and non-religious groups in terms of access to public facilities? I'm curious to hear what my legal eagle readers have to say on this.
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It has to do with the development of free-speech doctrine in the limited public forum context. Before we get there, a primer on speech forums. Generally, courts separate public places into one of three categories when deciding how much protection speech gets:
Public Forums
Sometimes also called "traditional" public forums. These are places that historically and traditionally have been open for speech. Think streets, sidewalks, the town square. Speech regulations here must be content-neutral (e.g., a reasonable time, place, or manner regulation) unless the regulation can meet strict scrutiny.
Designated Public Forums
These are places that would be non-public forums (see below) but for the fact that the government voluntarily and affirmatively opens them for speech activities. The public school is a good example here. It is a non-public forum, but if the government adopts a rule opening it at certain times for speech, it becomes a designated public forum. The problem here, for the government, is that the rules for speech regulations are the same here as for public forums (content-neutral unless strict scrutiny is satisfied).
Non-Public Forum
This is anyplace that isn't a public or designated public forum. Here, speech regulations are not subject to the same stringent standards. Government can regulate speech in non-public forums so long as the regulations are (i) reasonable; and (ii) viewpoint neutral.
Enough of the background. Suppose you're a government entity, like, say, a school district. You want to open your facilities to some speech, but not all speech. How do you do this? You can't create a designated public forum, because then you're subject to very strict limits on how you can regulate speech. The answer: you create (or try to create) a new type of forum, a "hybrid" combining aspects of designated and non-public forums, called the limited public forum. That is what New York did, many years ago (as I understand it --I'm no expert on New York state law and would defer to anyone who is). New York passed a law saying, in essence, we're creating this thing called a limited public forum. Our schools can open for speech limited to topics A, B, C, and so forth. But our schools cannot be used for religious speech. The state appears to have been concerned with Establishment Clause issues.
Enter Lamb's Chapel. It was presented to the Court as a limited public forum case, but the Court refused to go along. It analyzed the case as a non-public forum case (meaning reasonable and viewpoint neutral) and held that the exclusion of religious speakers was not viewpoint neutral. The Court did not reject the idea of a limited public forum, leading to the plausible conclusion that it could, under different cirumstances, be a distinction with a difference. The Court also said, of course, no Establishment Clause problem letting religious speakers use your facilities.
At the time this New York case you referred to first came around, then, the Court had not spoken on the subject of religious speakers and limited public forums. So the lower courts stuck to their guns. Note, additionally, that prior to Good News Club, there was a split between the Circuits on whether excluding religious speakers from non-public (or limited public) forums was or wasn't viewpoint neutral.
It wasn't until Good News Club that the Court spoke definitively on the subject of limited public forums and viewpoint discrimination. The standard for limited public forums appears to be the same as for non-public forums -- reasonable and viewpoint neutral speech regulations are allowed. Exclusion of religious speakers is viewpoint discrimination because it excludes the religious viewpoint. And yes, the limited public forum doctrine is subject to the same criticisms as is non-public forum doctrine. How, for example, do we distinguish between viewpoint discrimination (prohibited) and speaker or subject-matter discrimination (permitted as long as it is reasonable)?
So, as is typical of me, a long-winded answer that basically wraps up simply: the doctrine was in flux and developing. But it is a great question, Ed...the sort of thing that would be lots of fun on a Con Law final exam.
I don't have anything to add to Dan's response except to throw in a link to the Second Circuit Court of Appeals' opinion affirming summary judgment in the first go-around of the Bronx case. The court distinguished Lamb's Chapel.
I have since had it explained to me, on Eugene Volokh's religionlaw list, that the reason for the summary judgement at the trial level was that there were no facts in dispute. In such cases, it is apparently not unusual for a summary judgement to be issued because the legal issues, as opposed to the factual ones, are only disputed at the appeals court level. So the summary judgement was the judge essentially moving it on up the ladder quicker so they could have a good argument over that. What I don't get, I guess, is how the appeals court got it wrong. And here, the Supreme Court would seem to agree with me, by their writing in the Good News Club case, that the appeals court was wrong not to apply the reasoning of Lamb's Chapel. It seems to me that Lamb's Chapel was quite a definitive statement on this question and there was really no need for Good News Club in order to get this case right.
On the religionlaw list, Marci Hamilton is arguing that Lamb's Chapel shouldn't apply because "There is a huge difference between a student after-school club alongside other secular clubs and a church taking over a school building for most of a weekend solely for religious purposes, including full-scale worship." Well clearly there is a difference, but is there a constitutionally relevant difference? If there is, I don't see it. If a church may rent school facilities to show a movie, as Lamb's Chapel held, why can't they rent a school facility to hold a service? Lamb's Chapel explicitly addressed the question of establishment and ruled that it would not be an establishment of religion because it's A) not during school hours; B) not school-sponsored; and C) it's open for use by any religious or non-religious group for similar purposes. All three of those remain true in a worship setting as in a movie-showing setting. In Good News Club, the proposed activities for the club included singing hymns, bible-reading and prayer - i.e. worship, in all of its essentials - yet the court still ruled the same way.
As I said, it just seems to me that the plaintiffs had a compelling case here long before the Good News Club ruling came down. I would also add that, if it's up to me, I do away with the conflict between viewpoint discrimination and speaker or subject-matter discrimination by applying the same standard to the latter. If the government is going to allow others to rent facilities for the purpose of holding a meeting of whatever type, it cannot discriminate based upon content, subject matter or viewpoint (with the obvious exception of advocating something illegal, of course).
I don't know, I'm kinda partial to "when is margarine not margarine?" or "I can't believe the Supreme Court says it's not Butter"
But then again, I'm sure there are even more confusing cases than that. I'm still trying to figure out how E.C Knight wasn't interstate commerce.
[i]I have since had it explained to me, on Eugene Volokh's religionlaw list, that the reason for the summary judgement at the trial level was that there were no facts in dispute. In such cases, it is apparently not unusual for a summary judgement to be issued because the legal issues, as opposed to the factual ones, are only disputed at the appeals court level.[/i]
That second sentence isn't correct. When no facts are in dispute, it is common for the trial court to dispose of the case by way of summary judgment. But summary judgment is precisely where the legal issues are hashed out (before they are hashed out again on appeal). The trial court has the same responsibility as the appellate court to get the law right.
I have since had it explained to me, on Eugene Volokh's religionlaw list, that the reason for the summary judgement at the trial level was that there were no facts in dispute. In such cases, it is apparently not unusual for a summary judgement to be issued because the legal issues, as opposed to the factual ones, are only disputed at the appeals court level.
That second sentence isn't correct. When no facts are in dispute, it is common for the trial court to dispose of the case by way of summary judgment. But summary judgment is precisely where the legal issues are hashed out (before they are hashed out again on appeal). The trial court has the same responsibility as the appellate court to get the law right.
"If the government is going to allow others to rent facilities for the purpose of holding a meeting of whatever type, it cannot discriminate based upon content, subject matter or viewpoint (with the obvious exception of advocating something illegal, of course)."
Out here on most of the west/left coast, we use this basic reasonable position. Indeed we have had public schools rent/lease facilities from churches (who have open unused classroom space across the street from an over crowded school) and a whole host of faith based activities are permitted on campuses after school hours. It has been this way for many years it seems, so i was wondering if this is a New York issue or just more of various "pissy" people making hassles for others.
The most common uses of public school facilities for faith based activities have been for pre-school, afterschool care, and reading development programs. It just seems to make sense.
It strikes me that Lamb's Chapel was distinguishable from this case at least for the reason that the plaintiffs in Lamb's Chapel only wanted the use of the auditorium for a limited term (to present a six part film series), whereas in this case apparently the church in question wanted to basically monopolize use of the auditorium for particular times of the week for an indefinite period. I'm not sure that that is a relevant distinction, but it is a distinction.
raj wrote:
Not really true. They would have had it for likely 4 hours or so on a Sunday morning, as opposed to probably 3 hours on a weeknight. Certainly not a constitutionally relevant distinction.
Ed, not exactly. Suppose another "establishment of religion" wanted to rent the auditorium for the same time period some Sunday. Would they have been able to? Would the school district have had to hold a lottery to address conflicting requests? It does get to be a bit untennable if one group wants to have exclusive right to rent the facilities for an unspecified period of time, as appeared from the appeals court opinion.
BTW, I suspect (but cannot prove) that there are private theaters in the Bronx area that would be willing to rent out their facilities to the church for an indefinite period of time on Sunday mornings. If that's the case, it strikes me that the school district should not be in competition with such private installations.
raj wrote:
But the period of time here was not unspecified. Church services have specific times, just as any event does. They have to rent the space for a specific period of time because they usually require that at least a janitor is present to let them in and lock up when they leave (they don't just give keys and alarm codes to someone not employed by the school) and they have to pay that person for every hour they are there. So unspecified periods of time just don't apply to this or any other situation in which a school facility is rented for any purpose. Schools all around the country are rented out for church services (and boy scout meetings, and explorer club meetings, and Junior Achievement meetings, etc, etc) all the time. The only reason this one was turned down was that it involved religious worship. That is the only reason the school board offered for why it was rejected; indeed, they had written a regulation specifically forbidding the school from being rented for that purpose. That's the only thing this case had to do with.
No, Ed. From the appeals court opinion it appears that most of the other usages were directed to youth that arguably may have been students who might have attended the school. This is not necessarily the case with the "establishment of religion" that wanted to rent the facilities for what appeared to be an indeterminate period of time. That would have blocked the school district from being able to rent the facilities to, for example, Buddhists on Sunday morning. Or Muslims. Or other christian sects. Why should the plaintiffs in the case be able to monopolize the facilities during the relevant weekly time period, for an indeterminate period of time, which is what the article suggested they were doing?
raj wrote:
That is completely irrelevant. The case law, after Lamb's Chapel, is that if you are going to allow outside groups to rent school facilities for their own events - and this has nothing to do with whether it is "directed at youth" or not - then you cannot discriminate against religious groups wanting to rent it. You must apply the same standards to every outside group regardless of the group's religious or non-religious viewpoint.
I don't understand why you keep insisting on this "indeterminate period of time" notion. A church service has a beginning and an ending just like a boy scout meeting or a bake sale or a newspaper drive does. When you request the opportunity to rent a building, you rent it for X number of hours because you have to pay a per hour fee, including janitorial fees for the cleanup. There is nothing indeterminate about the time, and that had nothing at all to do with why the school turned them down. The school turned them down solely because their policy said they didn't rent out facilities for worship-related activities. It was that policy that was challenged; the amount of time they wanted to rent the school for is completely and totally irrelevant to the case.
And if they decide to rent the auditorium to the boy scouts, that means that junior achievement doesn't get to rent it at the same time. So what? This has NOTHING to do with the case. The school made no pretense of having any reason to deny them the opportunity to rent the facilities other than that it involved worship. That was it. It is the ONLY relevant issue in the case and the only thing the court had to consider.
Ed, I guess that I have to lay it out to you in gory detail. I'm not sure why, but I will.
Plaintiffs in this case apparently wanted to rent the facilities during a specificied time period apparently every week on an ongoing basis. Let's assume it was 10AM to 1PM every Sunday. This was evident from the appeals court opinion.
Suppose that another organization wanted to rent the facilities from, say 11AM to 12 PM on various occasions. Maybe they would be Buddhists. Maybe they would be Scientologists. Maybe they might have been MCCers (Metropolitian Community Church people--and I'm sure that you know who they are).
Let's turn it around, as I did. Should the public school auditoriums be in competitition with private auditoriums? That is one thing that you have not responded to. One might seriously wonder why not.
When I was a boy sprout, in the 1960s, our troop was sponsored by a local Lutheran church, and our Explorer post was sponsored by General Electric Company in Evendale OH. Public school auditoriums would not be particularly useful for, for example, teaching making lanyards or bow-line hitch knots. Or of learning the art of canoeing. All of which, and more, I learned as a boy sprout. (Actually, I learned much more than that. The most wonderous experience I ever felt was when we--I and my boy-sprout friends--were on an overnight caanoeing trip on the Whitewater canal. We overnighted in Metamora IN, where the Whitewater canal passed over another canal (whose name I don't recall). We climbed up to the intersection between the two canals and beheld the wonders of the stars. This was in the early 1960s.
It was a wonderful experience. But, it is doubtful that the Bronx school auditorium that is the subject of the mentioned lawsuit would be able to provide anything similar. Quite frankly, they should just shut the whole thing down, of renting the space out. Then, there would be no controversy.
raj wrote:
Well at least you've finally dropped the "indeterminate period of time" argument and recognized that the time is quite specific. That's progress, I suppose.
Again, a completely irrelevant argument. If the school rented to any group at any time, it would preclude another group from using the facilities at that time. That has precisely nothing to do with the legal issue. If they rented it to Junior Achievement for meetings every Tuesday night from 4 to 6, that would mean that the Jaycees couldn't also get it on Tuesdays between 4 and 6, but that has nothing to do with why the school turned them down or what the court considered in their ruling.
raj, for crying out loud, you're an attorney. You know as well as I do that this argument has nothing to do with the legal case. The school did not turn down the church because they didn't think they should be in competition with private auditoriums, and the court did not consider this argument, nor should they have. The court is empowered to rule only on the constitutionality of the policy. They don't rule on whether it's a good idea or not, whether the school should or should not rent facilities at all. The only question they had to consider was whether discriminating against religious groups when renting school facilities was constitutional or not. Your statement might be an argument against renting out school facilities at all, but it's not relevant to the question of whether the school's policy was constitutional or not.
Nor is it relevant that a school auditorium wouldn't have been useful to your boy scout troop in the 1960s. It just doesn't matter. If an outside group decides that the school has a facility that suits their needs, they can ask to rent it. The only legally relevant question is whether and how the school may discriminate between those groups seeking to do so.
Ed Brayton at November 20, 2005 01:39 PM
Well at least you've finally dropped the "indeterminate period of time" argument and recognized that the time is quite specific.
No, actually, I did not. The times that they wanted to rent the auditorium were for specific hours for specific days for an indeterminate period of time. Thereby precluding other groups from renting the same facilities for some of those same specific hours, on those same specific days for at least some of that indeterminate period of time. I did not believe that I would have to spell it out in detail, but I am willing to go further if you wish.
Regarding your Junior Achivement vs. JayCees, argument, I will merely point out--and I usually do not wish to address hypotheticals--that JA is a youth activity, which probably would include more than a few students from the school district. That would likely be in stark contrast to the JayCees.
Regarding your
comment, it is precisely from my expericence as an attorney that I have come to second-guess the real reasons for some of these decisions.
Actually, no. The school district is renting out its facilities at tax-exempt rates. So they would be able to under-cut commercial auditoriums. I don't really know any boy sprouts who would want to make lanyards or bow-line hitches in auditoriums, but such environments would be superb for christian churches. (We can discuss the lanyards and bow-line hitches elswhere). Commercial (likely non-tax exempt) aditoriums would have to charge rates that would have to cover the cost of the rental. So the school district has a commercial advantage.
Oh, yes, you are exactly correct--maybe the school district should avoid rent out their facilities to third parties. But, if they did, that would increase the cost of the maintenance of the school facilities to the district.
Maybe the school district should be forbidden from using its tax-exempt property from competing against other potential purveyors, that are not tax exempt.
Dan covered this topic very nicely, and a quick reading of the opinion provided maurile's link seems to confirm what I suspected: the difference had nothing to do with the time or duration of the use. It had to do with the purpose. The existing state regulations specified what a school building could and could not be used for; it specifically said this:
[quote]
No outside organization or group may be allowed to conduct religious services or religious instruction on school premises after school. However, the use of school premises by outside organizations or groups after school for the purposes of discussing religious material or material which contains a religious viewpoint or for distributing such material is permissible.
[/quote]
So the questions were this: is "discussion of religious material or material which contains a religious viewpoint" different than an outright "religious service"? And if so, is this distinction "reasonable in light of the purpose served by the forum"? The court answered both questions affirmatively.
The U.S. Supreme Court in [i]Good News Club[/i] set up a different standard, which is essentially this: in allowing the building to be used for a religious purpose (any religious purpose), would the school district reasonably be perceived as endorsing that religious group's views, thereby violating the establishment clause? If so, then the school can refuse to allow the group to use the school. If not, then the school has no establishment clause argument against allowing the use and must show some other compelling reason to deny use. In the latter situation, if the district can't show another compelling reason, it would violate the religious group's 14th Amendment equal protection and 1st Amendment free speech rights to deny use. (This is why [i]Good News Club[/i] won and the Santa Fe Independent School District lost ([i]Santa Fe Independent School District v. Doe[/i], 530 U.S. 290 (2000)): in [i]Good News Club[/i], the Court felt (wrongly, I think, based on the facts) that the use of the building after hours did not reasonably imply to students that the school endorsed the group's religious views, but that a prayer conducted over the school's PA system before an official function did give that impression (especially given the district's rather blatant history on the issue).
That's the distinction, I think: there was a lot of gray area on whether allowing the use of a school building for a "worship" service was reasonably seen as endorsing the religion until [i]Good News Club[/i], and that's why all the wrangling.
raj, you're still not getting it. None of those arguments you raise has anything at all to do with the legal case that is the subject of this post. The court didn't even consider the question of whether schools should rent out its facilities in competition with private facilities, nor could they consider that question. It has no bearing on the constitutional question before them in that case, which was: if they do rent out their facilities, can they discriminate against religious organizations in deciding who to rent to? They have answered that question "no" in two prominent cases now. And I think they're right.