Education Law Insights

Federal Court Says New York City Schools Can Prohibit “Religious Worship” In School Facilities

Posted by Jackie Wernz on April 7, 2014

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.

New FCC Mandates Affect Schools

Posted by Brian Crowley on October 19, 2012

With guest blogger Ashley Heard*

Many school districts and institutions of higher education use two-way radios for campus security, athletics, bus transportation, and facilities management. New FCC mandates require that all such radio systems be “narrowbanded,” or made to operate on channel bandwidths no bigger than 12.5kHz, by January 1, 2013. “Narrowbanding” is a process of updating radio technology so that it is more efficient.

In order to comply with the “narrowbanding” mandate, all radios must be either reprogrammed or replaced. Additionally, the corresponding FCC licenses must be updated to reflect the radios’ new mode of operation. The good news for schools is that most radio technology made after 1997 can be reprogrammed to operate in 12.5kHz. Moreover, there is no FCC fee for updating the corresponding licenses. Equipment made prior to 1997 and any equipment made thereafter that cannot be reprogrammed will have to be replaced.

Any systems that are not “narrowbanded” and properly licensed by January 1, 2013 are subject to license revocation and fines of up to $10,000 a day. Additionally, noncompliant systems may experience interference or be taken off the air entirely.

Radio users who worry they won’t meet the January 1, 2013 deadline may request a waiver. However, the FCC has indicated an unwillingness to grant waivers and the request process is lengthy. Thus far, at least one organization operating in the Illinois education space, First Student, a school bus provider, has received a waiver [pdf]. First Student has until January 1, 2014 to “narrowband.” The lesson for school and district leaders is to ensure they are on track to meeting the January 1, 2013 deadline and, if not, request a waiver immediately.

Overall,Illinoisradio users are making strong progress toward meeting the “narrowbanding” mandate. Under 20% of radio transmitters in the state remain noncompliant.

Looking toward the future, the FCC plans to undergo additional “narrowbanding.” Radio users should expect to “narrowband” from 12.5kHz to 6.25kHz though the FCC has not set a timeline for this second round of “narrowbanding.” School and district leaders would be wise to plan early for impending “narrowbanding” mandates.

* Ashley Heard, a law student at Loyola University Chicago School of Law, is Franczek Radelet’s Fall 2012 education practicum student.

 

2013 School Board Elections: Handling Nominating Petitions and Objections to Petitions

Posted by Brian Crowley on October 1, 2012

With guest blogger Scott Metcalf

There is confusion and concern about how school districts should handle receiving nominating petitions and objections to petitions for the 2013 school board elections. The Election Code says that school board nominating petitions must be filed between December 17 and 24, 2012. Objections to nominating petitions must be filed within five business days after December 24.

Many school districts intend to be closed at some point during the weeks of December 24 and December 31 (which both fall on Mondays this year). But, the law says certain things and doesn’t say others.

First, while the Election Code requires the office in which petitions are filed to remain open until at least 5:00 p.m. on December 24, the law does not specify how long the offices must be open before 5:00 p.m. In our opinion there is no legal requirement that the office be open for a specific number of hours, only that it be open until 5:00 p.m. Second, nothing requires a school district to open its offices on the five business days after December 24 (i.e., December 26-28, December 31, and January 2). One Illinois Appellate Court has held that the relevant business days for determining when objections are due are the regular business days of the public body that accepts the nominating petitions. The business days of the State Board of Elections would not be relevant for school districts. Thus, a school district could be closed on December 31, but would have to accept objections for one additional day (i.e., the last day for accepting objections would be January 3 instead of January 2). (more…)

Illinois Prevailing Wage Act Amendment

Posted by Jackie Wernz on September 19, 2012

With guest blogger Maria Mazza

The Illinois Prevailing Wage Act requires public bodies to pay all laborers, workers and mechanics performing work for a public works contract at least the prevailing rate of wages.  If the Department of Labor (DOL) revises the prevailing rate of wages, the public body must apply the revised rate and provide notice of the change to the contractor and each subcontractor working on a public works contract.

A recent amendment to the Prevailing Wage Act, Public Act 97-0964 provides that public bodies may now provide the required notice regarding revisions in the prevailing wage rate by inserting a provision in the contract that states that the prevailing wage rates are revised by the DOL and available on its website.  Thus, public bodies would not be required to provide notice every time the DOL revises a rate.  Instead, the provision in the contract serves as the required notice.

Given this recent amendment, public bodies should include such a provision in all public works contracts.