In recent decades, public school buildings have become increasingly important venues for religious worship services. (1) This is an outgrowth of two factors. First, school districts today commonly make their facilities available during non-school hours to a variety of community groups. This partially reflects schools' desire to support local community activity, but in many cases they also have significant financial incentives to charge rent for the space. School district community-use policies are typically open to a range of uses and groups, including religious, thus making the space available to religious groups. Indeed, excluding religious uses from a school-created forum could potentially violate the First Amendment, as reflected in a series of Supreme Court decisions. (2)
Second, churches themselves are often in need of space for worship services. This is particularly true of new, start-up churches, which typically do not have the resources to secure a permanent building. Although many use old storefronts or rent space from existing churches, an increasing number of new churches initially use school facilities. (3)
In many respects, this has been a comfortable arrangement for both schools and churches. School buildings are rarely used on Sunday mornings, and churches can set up and take down any equipment they might need with no interference to school operations. A school building is spacious enough to accommodate large numbers of worshippers, while also providing separate rooms for nursery care and Sunday school classes. At the same time, cash-strapped school districts appreciate the extra income that rental of the space provides. Allowing religious services in public schools reflects accommodation of religion, a cherished American tradition. (4) It is not surprising, therefore, that an increasing number of new churches use school facilities when they first open.
Nevertheless, the inclusion or exclusion of religious worship services in public schools raises a variety of First Amendment issues. On the one hand, school districts have no obligation to allow churches or any other community group to use their facilities during non-school hours, no matter how pressing the need. Schools are not a traditional forum, and are free to shut their doors to the community. (5) On the other hand, to allow churches, but not others, to use school facilities would clearly violate the Establishment Clause (6) and most likely the Free Speech Clause. (7) This much is clear.
But in the typical situation where schools open their facilities to community groups, the constitutional issue raised by including or excluding religious worship is more nuanced. In particular, does church use of school facilities for religious worship services, which almost all community-use policies allow, violate the Establishment Clause by allowing a core and quintessentially religious activity on school grounds? Conversely, does excluding religious worship because of Establishment Clause sensibilities from an otherwise broad community-use program violate the Free Speech or Free Exercise clauses?
The Supreme Court has not directly addressed these issues. However, the Court has addressed instances where religious speech and activity has been excluded from school-created fora for either student or community groups because of perceived Establishment Clause concerns. In a series of five analogous cases, the Court held that the exclusion of religious speech from a school-created forum violates the Free Speech Clause, and the inclusion of such speech does not violate the Establishment Clause. (8)
It is somewhat surprising, therefore, that in two decisions arising from litigation involving The Bronx Household of Faith (Bronx Household), the Second Circuit Court of Appeals held that exclusion of religious worship services from a community-use forum did not violate the Constitution. (9) In these cases, the court reviewed and upheld a New York School District policy that allowed use of school facilities for various community activities during after-school hours, but specifically prohibited use of schools for religious worship services. Bronx Household challenged the policy, claiming that it discriminated against religious viewpoints and was thus unconstitutional. In litigation stretching back almost two decades, the Second Circuit ultimately held in two decisions that exclusion of religious worship services from an otherwise broad community forum violated neither the Free Speech Clause nor Free Exercise Clause, and was therefore constitutional. (10) In doing so, the court also strongly suggested that to include religious worship services in such a forum would violate the Establishment Clause.
In the first decision, Bronx Household of Faith v. Board of Education of City of New York (Bronx Household IV), the Second Circuit addressed the free speech issue, concluding that exclusion of worship services did not violate the First Amendment. (11) In doing so, the court characterized the worship exclusion as banning a type of activity, rather than a point of view, such that it was distinguishable from Supreme Court cases and valid. (12) It also stressed that the worship service ban was reasonable in light of the potential Establishment Clause problems posed by permitting worship services on school property. Although the court was careful to state that it was not deciding whether the worship services would in fact violate the Establishment Clause, only that it was reasonable to believe it would, the tone of the opinion strongly suggested that it would likely violate the Establishment Clause. (13) Indeed, in several places the court stated that there was a "strong basis" to believe that allowing worship on public school property would violate the Establishment Clause. (14)
Since the district court and Second Circuit had only addressed the Free Speech and Establishment Clause issues in Bronx Household IV, but not whether exclusion of worship services violated the free exercise of religion, the church again sought an injunction against enforcement of the policy--this time on Free Exercise grounds. The district court held that exclusion of worship violated the First Amendment's Free Exercise Clause, and the case returned to the Second Circuit. (15) In Bronx Household of Faith v. Board of Education of City of New York (Bronx Household V), the Second Circuit again rejected the church's constitutional claim, finding that exclusion of worship services did not violate the Free Exercise Clause. (16)
Despite the rather complicated history of the Bronx Household litigation, the bottom line is rather straightforward. The Second Circuit Court of Appeals held that exclusion of religious worship services from a broad forum that allows outside groups to use school facilities does not violate the Free Speech Clause or Free Exercise Clause, and strongly suggested that the inclusion of worship services in the forum would violate the Establishment Clause. (17) Although the Second Circuit was careful to couch its analysis in the particular language of the New York School District community-use policy, as a practical matter, the court's reasoning and analysis relates to almost any public school policy regarding community use of its facilities. As suggested above, the issue is extremely important, as numerous public school districts allow community groups, including churches and other religious groups, to use their facilities during non-school hours.
This article will examine the issue of using public school space for worship, arguing that the Second Circuit was wrong in its Free Speech Clause, Establishment Clause, and Free Exercise Clause analysis. (18) First, the court was incorrect to characterize worship services as conduct rather than speech. Even if the school-use policy created a limited public forum, worship services are inherently expressive activities. Therefore, under Supreme Court precedent, the exclusion of worship services should be seen as viewpoint discrimination. The fact that religious views can be expressed in other contexts, such as Bible studies, fails to recognize that the means of communication are inherently part of the message. This is particularly true with worship, where the form of communication is an integral and essential aspect of communicating views of faith.
Second, the court was incorrect to state there was a "strong basis" to believe that renting facilities to churches for worship services would violate the Establishment Clause. The Supreme Court's emphasis on neutrality in prior limited forum cases involving religious speech strongly suggests the neutral treatment of worship would mitigate Establishment Clause concerns that might otherwise exist. (19) In particular, any concerns about perceived government endorsement of religion, the primary emphasis of the court in the Bronx Household litigation, are eliminated by a neutral treatment of religion. (20)
Third, the Second Circuit was also incorrect in concluding that excluding worship services from the school-use policy would not violate the Free Exercise Clause. This is admittedly a closer issue, because the Supreme Court has indicated that the Free Exercise Clause will tolerate limited disfavorable treatment of religion. (21) Yet a careful reading of precedent suggests it is limited to instances of an extremely strong Establishment Clause concern, which is absent in the Bronx Household cases. As such, the Supreme Court's general rule that targeting religion for unfavorable treatment triggers strict scrutiny should govern, making the policy unconstitutional.
Part I of this Article will provide background to the issue of using public school space for religious worship, examining three contexts in which the Supreme Court has examined religion in public schools: release time programs, prayer, and limited public forum cases. Part II will then analyze the Second Circuit's decision in Bronx...