As our firm reported earlier this year, the Supreme Court recently held that sectarian invocations at public meetings do not automatically violate the First Amendment of the U.S. Constitution, which separates church and state. Advocates for schools have opined about the potential impact the case, Town of Greece v. Galloway, may have in the context of school board meetings. For instance, Education Week’s summary of the case stated:
[E]ducation law experts [have] much to chew about over whether the court would treat school board meetings the same as town councils and other municipal meetings. Some federal appeals courts that have addressed meeting prayers at school board meetings have distinguished that situation … by suggesting board meetings were more like school itself, with frequent presence of schoolchildren in a coercive environment.
A recent complaint filed by the Freedom from Religion Foundation against a school district in California promises to test how the Greece holding will be applied in the school context. The complaint in Freedom from Religion Foundation v. Chino Valley Unified School District Board of Education cites to Third and Sixth Circuit appellate court cases that found constitutional violations where prayer was included in school board meetings.
Although it remains to be seen how the California court or any other court will decide the issue after Greece, the lawsuit highlights the significant risk associated with injecting religion into public board meetings, even after the recent Supreme Court ruling. This is especially true where, as in the California case, students are required to be present at school board meetings in any context. Until the issue is decided by a court in this jurisdiction, school boards should continue to consult with counsel before making religious invocations at meetings.
As reported in the New York Times, the Second Circuit Court of Appeals recently held that a school district could prohibit outside community groups from using school facilities for “religious services” without violating the Free Exercise clause of the First Amendment to the U.S. Constitution. The decision is noteworthy because prior U.S. Supreme Court decisions suggested that student and community groups had relatively broad rights to conduct religious activities in school facilities, at least where the school “opened the door” to similarly-situated non-religious groups. The decision is fairly narrow, though, and the reality is that even after the case, most religious activities by student and community groups will be permissible once a forum is “opened” to outside groups. The case does provide strong support for a decision by a school district with legitimate concerns about community perceptions of “religious services” on school grounds to prohibit such services, however, and so is worth a closer look.
The Court’s Decision
In Bronx Household of Faith v. Board of Education of the City of New York, the Board of Education made New York City’s school facilities available outside of school hours for use by community groups and organizations. The school district “subsidized” the facility use in that it did not charge a fee for such use. The Board was concerned that allowing groups and organizations to hold religious worship services under those circumstances would create the perception that the City was improperly supporting or endorsing religion. Accordingly, the Board prohibited use of the facilities for “religious worship services.”
A religious group sued, arguing that the prohibition violated the First Amendment’s protections of free speech and free exercise of religion by limiting their ability to engage in their religious speech or expression. The group also argued that the rule created an impermissible entanglement with religion in violation of the Establishment Clause, because school leaders would have to determine what was or was not “religious worship services.” The Second Circuit, which is the federal appeals court with jurisdiction over Connecticut, New York, and Vermont, previously addressed and rejected the free speech claim in an earlier appeal. In this case, the court focused on the Free Exercise and Establishment Clause issues.
The Second Circuit held that the Board’s prohibition did not violate the Free Exercise Clause or Establishment Clauses. The court found that the prohibition was content-based and applied equally to all entities conducting religious services without consideration of an entity’s religious viewpoint, and so did not violate the Free Exercise Clause. The court was persuaded by the following facts in finding no violation:
- The fact that the Board’s policy treats all users, whether religious or secular, the same;
- The fact that there was no evidence that the Board had an animus against religion generally or any religion that conducted worship services specifically;
- The fact that the Board had a bona fide and reasonable concern that allowing the free use of school facilities for religious worship would create a substantial risk of a claim that the Board was improperly supporting or endorsing religion in violation of the Establishment Clause; and
- The fact that the Board’s policy did not prohibit all religious worship by groups in any location, but instead left groups free to conduct worship services wherever they choose other than the Board’s schools.
For many of the same reasons, the court found no violation of the Establishment Clause.
Insights for Educators
Although the Bronx Household decision is not binding law outside of the Second Circuit, it provides persuasive authority to school leaders who wish to avoid the appearance of improper entanglement with religion by prohibiting religious services on school grounds. Based on the facts of the case, such prohibitions will be strongest where coupled with a bona fide and reasonable fear that there will be a concern about impermissible entanglement with religion if religious services are allowed. Such a concern may be reasonable if, for instance, the facilities are provided for free or other resources are provided by the school to facilities users. If there is a history of animus by school leaders against religion generally or a particular group that conducts religious services, such prohibition will be at greater risk of constitutional challenge.
The decision does not alter the robust rights of student and community groups to use school property for other religious purposes when such property is generally made available for non-religious uses. For instance, it is unquestionable that a student group or outside group or organization can hold meetings involving singing religious songs, reading bible lessons, and memorizing scripture in a public school where school policy allows similarly-situated non-religious groups, such as social, civic, and recreational groups, to do so, as long as those groups comply with relevant school district policies and procedures and relevant laws.
The Bronx Household case is a good reminder of how nuanced and frequently changing this area of law is. School leaders are advised to work closely with legal counsel whenever questions arise about the rights of access religious groups may have to public school facilities so as to avoid a First Amendment constitutional challenge.