Updated: Federal Court of Appeals says, let NYC public schools decide on whether religious groups can meet in public schools in off-hours

Today, a three-judge panel for the Second Circuit Court of Appeals ruled in a split 2-1 decision that the NYC Department of Education has a right to enforce its rule against religious groups using school space in the off-hours for worship services. However, the ruling seems to implicitly allow the public school department to rescind its rule.

The case of the Bronx Household of Faith versus the NYC Board of Education has been going back and forth in the courts six times since the late 1990s. In 2012 Federal District Court Judge Loretta A. Preska issued a stinging rejoinder to the NYC public school lawyers and permanently enjoined them from enforcing their rule against the religious groups. The NYC education department appealed the ruling which resulted in a favorable ruling today.

The majority opinion now allows the public schools to give notice to the religious groups that they may no longer meet in the public school facilities in the off-hours for the purpose of worship services. In the past the educational department’s lawyers acted swiftly to push the religious groups out, though in the current ruling the justices did not specify any procedural advice. It seems unlikely that Mayor Bill de Blasio will act so preciptioiusly.

The mayor marched at the head of several large protest parades by the religious groups against Mayor Michael Bloomberg’s intransigence against the religious group.

What was interesting is the Second Circuit court allowed that it was not deciding about whether the NYC Department of Education needs to have such a rule. In his majority opinion Judge Pierre N. Leval allowed “We do not reach the question whether the Board [now named the NYC Department of Education] would violate the Establishment [prohibiting the establishment of a religion by the state] clause by allowing the subsidized use of the school facilities for religious worship services.” The judge cited a previous opinion by the Second Circuit Court about the use of holiday decorations in government facilities in saying “we afford the government some leeway in policing itself to avoid Establishment clause issues, even if it thereby imposes limits that go beyond those regulations by the Constitution.” The court said that just because the government might make a constitutional mistake in their rules doesn’t mean that it should be liable for damages for that mistake.

The court’s majority opinion struct a new note by intertwining monetary and constitutional issues in its opinion. From the beginning of his opinion Leval reiterated phrases like “risk of liability” and “subsidized facilities,” and “subsidies” for rent to the religious groups. Essentially, the judge claimed that the religious groups were getting space at a price subsidized by the city government. However, the religious groups have argued that they wanted the school space just on the same terms as thousands of other community groups were able to obtain. The religious groups asked why should their usage of the school space be segregated out for special discrimination based on their religious activities.

De Blasio has marched into City Hall with a pledge to support the religious groups in their long fight with the NYC Department of Education. Now, the ball is in his court.

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Update from Mayor Bill de Blasio at PS 1, Chinatown:

Today at press conference at PS 1 in Chinatown. Photo: Office of NYC Mayor

The New York Times reported Mayor de Blasio’s response:

“Mr. de Blasio, at a news conference on Thursday at Public School 1 in Chinatown, said he had not yet seen the ruling, which he said would be reviewed the city’s corporation counsel, Zachary W. Carter. But he said that the groups should have access to the schools.

‘I stand by my belief that a faith organization playing by the same rules as any community nonprofit deserves access,’ he said. ‘You know, they have to go through the same application process, wait their turn for space, pay the same rent. But I think they deserve access. They play a very, very important role in terms of providing social services and other important community services, and I think they deserve that right.

‘But we’ll assess the court decision and we’ll look from there,’ he added.”

Reverend Dimas Salaberrios and Reverend Wm. Devlin, Co-chairs of Right To Worship responded, “Mayor de Blasio was with us all the way on Right to Worship when he was Public Advocate.”