Bronx Household of Faith v. Community School District No. 10

JOSÉ A. CABRANES, Circuit Judge,

concurring in part and dissenting in part:

I agree with the majority that in addressing the important free speech questions presented in this ease, we must apply the level of scrutiny appropriate to governmental restrictions of speech in “limited public forums.” Despite the fact that New York Education Law § 414 and school board policy opened the schools to a wide variety of different speakers, and despite the fact that the Supreme Court, analyzing the same statute under similar circumstances, found “considerable force” in the argument that such restrictions of speech “were subject to the same constitutional limitations as restrictions in traditional public forums,” see Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 391, 113 S.Ct. 2141, 2146, 124 L.Ed.2d 352 (1993), we are constrained by controlling precedents of this Court and the factual stipulations of the parties to find that the school facilities in this case constituted only a limited public forum. Governmental restrictions of speech in limited public forums will be upheld only if the restrictions are reasonable and viewpoint neutral. See Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829-31, 115 S.Ct. 2510, 2517, 132 L.Ed.2d 700 (1995).

I concur in the Court’s judgment insofar as it holds the ban on “religious services” by Community School District No. 10 (“District”) to be reasonable and viewpoint neutral. However, because I believe that the District’s ban on “religious instruction” discriminates on the basis of viewpoint by allowing private groups to conduct after-school instruction on a wide array of topics only from a secular perspective, I dissent from that part of the Court’s judgment upholding the ban on “religious instruction.”

I.

In Deeper Life Christian Fellowship, Inc. v. Board of Education, this Court adopted an intermediate state court’s construction of New York Education Law § 414, see Trietley v. Board of Educ., 65 A.D.2d 1, 409 N.Y.S.2d 912, 915 (N.Y.App.Div.1978), that the use of New York schools is limited to nonreligious purposes, and therefore concluded that in enacting this statute the state intended to create only a limited public forum. 852 F.2d 676, 680 (2d Cir.1988) (Deeper Life I). Because Trietley was decided before the Supreme Court’s landmark ruling in Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) (holding that public university could not exclude religious worship and teaching from public forum), it may well be that the state court in Trietley based its decision on a now-outdated understanding of the Establishment Clause. Nevertheless, Deeper Life I was decided subsequent to Widmar, and its adoption of Trietley’s reading of § 414 was reaffirmed in Deeper Life Christian Fellowship, Inc. v. Sobol, 948 F.2d 79, 83 (2d Cir.1991) (Deeper Life II), and again in Lamb’s Chapel v. Center Moriches Union Free School District, 959 F.2d 381, 387 (2d Cir.1992), rev’d on other grounds, 508 U.S. 384, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993).

The Supreme Court in Lamb’s Chapel described the very argument pressed by plaintiff in this case — that § 414 and school district policy created a fully-open public forum, not a limited public forum excluding religious uses — -as having “considerable force.” 508 U.S. at 391, 113 S.Ct. at 2146. However, the Court ultimately left unresolved the question whether a school that opens its facilities indiscriminately, except as to a very narrow class of excluded communicative uses, may still claim to have created only a limited public forum. Id. at 391-92, 113 S.Ct. at 2146. Therefore, in light of our obligation to follow the decisions of prior panels of this Court unless they have been overruled by a holding of the Supreme Court, see Gold v. Feinberg, 101 F.3d 796, 801 (2d Cir.1996) (holding of prior panel “can only be overruled by this Court sitting in banc or by a decision of the Supreme Court”), we are not free to follow the Supreme Court’s strong suggestion, in what is concededly dicta, even though it may amount to an “anvil-like hint,” see ante, at 212 (quoting Appellant’s Brief at 16).

In addition, we are foreclosed from exploring whether prior practices of the District in the instant case may have opened the forum to religious services or instruction, see Travis v. Owego-Apalachin Sch. Dist., 927 F.2d 688, 693 (2d Cir.1991) (holding that where school has allowed its facilities to be used for particular category of activities, it creates forum that must remain open to category of activities “exemplified by the prior permitted use”), by the unusually sparse record in this case (covering uses of the school during only a single school year) and by the stipulation of the parties that the District “has consistently followed Policy 5.9 by never renting school facilities to non-school groups or organizations ... for the purpose of conducting religious worship services and religious instruction on school premises.” Joint Stipulated Facts at 9.

Accordingly, I agree that in the circumstances presented here, SOP 5.9 must be judged by the standard reserved for restrictions on speech in limited public forums. We will uphold such restrictions if they are “reasonable in light of the purpose served by the forum,” and they do not “discriminate against speech on the basis of its viewpoint.” Rosenberger, 515 U.S. at 829-31, 115 S.Ct. at 2517 (internal citations and quotation marks omitted). Because I believe that the provision of SOP 5.9 banning “religious instruction” is viewpoint discriminatory under the Supreme Court’s decisions in Lamb’s Chapel and Rosenberger, I would hold that provision unconstitutional under the Free Speech Clause of the First Amendment to the United States Constitution.

II.

In Lamb’s Chapel, the Supreme Court rejected as viewpoint discriminatory a school district’s denial of a permit for a church-sponsored film series dealing with family and child-rearing issues from a religious perspective. 508 U.S. at 394, 113 S.Ct. at 2147. The school district, pursuant to New York Education Law § 414, had established a policy permitting school facilities to be used after school hours for “social, civic, and recreational” purposes, but not for “religious purposes.” Id. at 386-87, 113 S.Ct. at 2143-44. The Court found there to be “no suggestion ... that a lecture or film about child rearing and family values would not be a use for social or civic purposes otherwise permitted by [school district policy],” id at 393, 113 S.Ct. at 2147 nor “any indication ... that the application to exhibit the particular film series involved here was, or would have been, denied for any reason other than the fact that the presentation would have been from a religious perspective,” id. at 393-94, 113 S.Ct. at 2147—48. The denial of the permit therefore violated the principle that “the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.” Id. at 394, 113 S.Ct. at 2147 (internal quotation marks omitted). The fact that the policy treated all religions alike was immaterial inasmuch as it discriminated between religious and secular viewpoints. Id. at 393, 113 S.Ct. at 2147.

The Court further explained that such viewpoint discrimination was impermissible, “‘provided that the defendants have no defense based on the [Establishment [C]lause,’” id. (quoting May v. Evansville-Vanderburgh Sch. Corp., 787 F.2d 1105, 1114 (7th Cir.1986) (Posner, J.)), and the Court had “no trouble” dismissing any possible Establishment Clause defense. Since the film series would have been shown after school, would not have been sponsored by the school, and would have been open to the public, and since many other private groups had used school facilities in the past for a wide variety of purposes, the Court concluded that there was “no realistic danger that the community would think that the District was endorsing religion or any particular creed, and. any benefit to religion or to the Church would have been no more than incidental.” Id. at 395, 113 S.Ct. at 2148.

Elaborating upon its Lamb’s Chapel decision, in Rosenberger the Court held that the refusal by the University of Virginia (“UVA”) to fund a religiously oriented student newspaper through the school’s Student Activities Fund (“SAF”), while funding a wide variety of other student groups and publications through SAF, also constituted viewpoint discrimination. 515 U.S. at 829-31, 115 S.Ct. at 2517. By denying funding to publications because they “primarily promot[e] or manifest] a particular belie[f] in or about a deity or an ultimate reality,” id. at 836, 115 S.Ct. at 2520, UVA “required public officials to scan and interpret student publications to discern their underlying philosophic assumptions respecting religious theory and belief,” id. at 845, 115 S.Ct. at 2525. This contravened the Free Speech Clause because “[t]he Government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.” Id. at 829, 115 S.Ct. at 2516 (citing Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46, 103 S.Ct. 948, 955, 74 L.Ed.2d 794 (1983)). Such viewpoint discrimination “is presumed impermissible when directed against speech otherwise within the forum’s limitations.” Id. at 830, 115 S.Ct. at 2517 (citing Perry, 460 U.S. at 46, 103 S.Ct. at 955).

Significantly for our purposes here, the Court expressly rejected the dissent’s view that UVA could constitutionally undertake to distinguish between “works characterized by the evangelism of [the student newspaper] and writing that merely happens to express views that a given religion might approve,” id. at 896, 115 S.Ct. at 2550 (Souter, J., dissenting). See id. at 843-45, 115 S.Ct. at 2524 (majority opinion). The Court observed that “[w]ere the dissent’s view to become law it would require the University ... to scrutinize the content of student speech, lest the expression in question ... contain too great a religious content.... That eventually raises the specter of governmental censorship, to ensure that all student writings and publications meet some baseline standard of secular orthodoxy.” Id.

As in Lamb’s Chapel, the Court in Rosenberger discerned no Establishment Clause defense for UVA’s restriction on religious speech. The Court cited numerous cases firmly providing that the Establishment Clause does not bar the government from providing benefits to religious groups or speakers on an equal basis with other groups and speakers. See id. at 837-43, 115 S.Ct. at 2521-23. Funding the newspaper would not have run afoul of the Establishment Clause because UVA had not “ ‘willfully fostered or encouraged’ any mistaken impression that the student newspapers speak for the University.” Id. at 841, 115 S.Ct. at 2523 (quoting Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 764-66, 115 S.Ct. 2440, 2448, 132 L.Ed.2d 650 (1995)).

In light of these teachings of the Supreme Court, I conclude that the District’s exclusion of religious instruction in the instant case is not viewpoint neutral. SOP 5.6.1 sweepingly authorizes use of school premises after hours “[f]or the purpose of instruction in any branch of education, learning or the arts.” SOP 5.9, however, while allowing “discuss[ion][of] religious material or material which contains a religious viewpoint,” bans “religious instruction on school premises after school.” The net effect is to require schools to put a halt to any after-school instruction that “contain[s] too great a religious content,” Rosenberger, 515 U.S. at 844, 115 S.Ct. at 2524. Where secular viewpoints on a subject are concerned, the District’s policy allows private groups not only to discuss the subject, but to instruct others from their secular perspective without hindrance by public authorities. Where religious viewpoints on the same subject are detected, private groups may “discuss” but they may not “instruct.” Far from properly treading the delicate line between discrimination based on subject matter or content and discrimination based on viewpoint, as the majority contends, see ante, at 213, the District’s policy banning religious instruction, while at the same time allowing instruction on any subject of learning from a secular viewpoint, is an impermissible form of viewpoint discrimination. Indeed, the distinction that the District attempts to draw between instruction and discussion is akin to the distinction drawn by the dissent in Rosenberger, but rejected by the Court, between “evangelism” and speech “that merely happens to express views that a given religion might approve,” id. at 896, 115 S.Ct. at 2550 (Souter, J., dissenting). See id. at 843-45, 115 S.Ct. at 2524 (majority opinion).

The fact that in the instant case the parties agree that the District has previously allowed secular, instruction related to “ethics” and “character,” paradigmatic contexts for religious instruction, only underscores the likelihood that the District’s policy on “instruction” will systematically suppress sectarian viewpoints. The record reveals that the District has in the past allowed the Boy Scouts to provide “ethical education based on the Scout Oath and Scout Law,”¹ and has permitted a group called “Pius XII Beacon,” organized under Catholic Charities, to conduct after-school “character training for the students [which] had no religious content.” Joint Stipulated Facts at 3, 5-6. That ethics may be taught from a secular perspective but not from a religious perspective effectively places the religious viewpoint at a disadvantage in the marketplace of ideas. If the State may escape the strictures of the Free Speech Clause by merely hindering the religious viewpoint, without banning it entirely (after all, the District still allows religious materials to be “discussed”), then the long line of cases teaching that public authority over private speech must be viewpoint neutral will be easily circumvented.

As in Lamb’s Chapel and Rosenberger, moreover, the District’s preference for secular instruction over religious instruction cannot be justified by an Establishment Clause defense. The ban on instruction from a religious perspective, far from being required by the Establishment Clause, if anything offends “the very neutrality the Establishment Clause requires.” Rosenberger, 515 U.S. at 846, 115 S.Ct. at 2525. There is nothing in the record to suggest that by allowing religious instruction to take place after school hours on an equal basis with other forms of instruction the District would or could “willfully foster[] or encourage[] any mistaken impression” that the organizations conducting after-school religious instruction actually speak for the District, Rosenberger, 515 U.S. at 841-43, 115 S.Ct. at 2523 (internal quotation marks omitted). Because the District has opened itself up so widely to other outside organizations, see ante, at 210-11, while restricting use of school facilities by outside groups to after-school hours and weekends, there is “no realistic danger that the community would think that the District was endorsing religion or any particular creed,” Lamb’s Chapel, 508 U.S. at 395, 113 S.Ct. at 2148.

We are not the first court to reach the issue of prohibitions on religious, but not secular, instruction. The Court of Appeals for the Tenth Circuit recently held that the City of Albuquerque’s ban on “sectarian instruction” in publicly run senior-citizen centers discriminated on the basis of viewpoint and therefore violated the Free Speech Clause. See Church on the Rock v. City of Albuquerque, 84 F.3d 1273, 1279 (10th Cir.1996). That court held that “[a]ny prohibition of sectarian instruction where other instruction is permitted is inherently non-neutral with respect to viewpoint” and “intrinsically favors secularism at the expense of religion.” Id.²

Because I conclude that the District’s policy banning after-school religious instruction by outside groups, without banning instruction from secular viewpoints, discriminates on the basis of viewpoint, I would hold that it is unconstitutional under the Free Speech Clause of the First Amendment.

Unlike religious “instruction,” there is no real secular analogue to religious “services,” such that a ban on religious services might pose a substantial threat of viewpoint discrimination between religion and secularism. Indeed, the dictionary definition of the term “services” in this context suggests as much: “a) public worship b) any religious ceremony. Webster’s New World Dictionary at 1226 (Prentice Hall 1994). Because “services” are by definition religious in nature, it does not appear that they could ordinarily be understood to serve as a vehicle for both religious and secular viewpoints. I am therefore satisfied — while recognizing that the line between permissible “content” discrimination and impermissible “viewpoint” discrimination “is not a precise one,” Rosenberger, 515 U.S. at 831, 115 S.Ct. at 2517 — that the District’s ban on religious “services” in SOP 5.9 is best described as a form of “content” discrimination that does not favor one viewpoint over another. For this reason, I concur in so much of the majority’s opinion as upholds the ban on religious worship.

I note, however, that I am more skeptical than the majority appears to be of the government’s ability to draw distinctions between religious worship — or indeed religious instruction — and “other forms of speech from a religious viewpoint that District # 10 has elected to allow----” Ante, at 215. In some circumstances, enforcement of the exclusion of religious “services” might lead to “excessive entanglement with religion,” Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2110-11, 29 L.Ed.2d 745 (1971). Cf. Rosenberger, 515 U.S. at 843-45, 115 S.Ct. at 2524; Board of Educ. v. Mergens, 496 U.S. 226, 248, 110 S.Ct. 2356, 2370, 110 L.Ed.2d 191 (1990); Widmar, 454 U.S. at 270 n. 6, 102 S.Ct. at 274 n. 6. There may be cases in which the parties dispute whether or not a proposed activity for which permission to use school premises is denied actually constitutes religious instruction or worship, and the very act of making such classifications may deeply — and unconstitutionally — entangle public officials in essentially theological determinations. However, this issue does not arise in the instant case, as the parties have stipulated that plaintiff seeks to use a school gymnasium for “religious worship services.” Joint Stipulated Facts at 8-9.

III.

In conclusion, while in the circumstances presented I concur in the judgment of the Court upholding the District’s ban on religious services, I believe that the ban on religious instruction favors secular over religious viewpoints in violation of the Free Speech Clause of the First Amendment. I therefore respectfully dissent from that part of the judgment upholding the ban on religious instruction.

1 . Although the majority's recitation of the purposes for which the school has been used in the past describes the Boy Scouts as having conducted "training of adolescent boys in various skills, including camping and first aid," ante, .at 210-11, it bears noting that the record also indicates that "ethical education” was included in the Boy Scouts’ training. Joint Stipulated Facts at 3.

2 . I believe the majority is incorrect in referring to this clear holding as "dictum.” Ante, at 214. The majority characterizes Church on the Rock as hinging upon the fact that "the City's senior citizen centers had been opened to other public presentations regarding the Bible,” and attempts to distinguish the instant case on this basis. Id. However, the Tenth Circuit explicitly found that “even if the City had not previously opened the Senior Centers to presentations on religious subjects, its policy would still amount to viewpoint discrimination.” 84 F.3d at 1278. The Court found that "any” prohibition of religious instruction by outside groups where other instruction is permitted is "inherently” viewpoint discriminatory. Id. The fact that the court amplified upon this holding by explaining precisely how and why the ban unconstitutionally suppressed the religious viewpoint in that case does not detract from the court's holding that the ban was unconstitutional on its face.