WASHINGTON (ABP) – Church-state observers expressed surprise at the Supreme Court’s Dec. 5 refusal to hear an appeal of a ruling that New York City has the right to bar the use of public school buildings for worship when school is not in session.
The 2nd U.S. Circuit Court of Appeals ruled in June that the New York City board of education could enforce a policy prohibiting outside groups from using school facilities outside of school hours for “religious worship services.”
Groups including the Baptist Joint Committee for Religious Liberty and Americans United for Separation of Church and State said the ruling contradicted past decisions of the Supreme Court that by renting out facilities school boards create a “limited open forum” and cannot discriminate about who gets access based on the content of their speech.
“The school can hide the keys on Friday and not open up again until Monday,” BJC Executive Director Brent Walker said in a newspaper commentary at the time. “But if it does open up to the outside, the school has to treat religion the same as any other group.”
In turning down the appeal, the Supreme Court left standing the lower court’s narrow distinction that the school policy prohibited only performance of a religious worship service, not the expression of religious speech.
“There is an important difference between excluding the conduct of an event or activity that includes expression of a point of view, and excluding the expression of that point of view,” the appeals court ruled.
The majority said schools can exclude all sorts of activities — such as martial arts matches, livestock shows and horseback riding — for legitimate reasons without viewpoint discrimination. The policy against worship services is a similar “content-based exclusion,” they said, which is constitutional as long as it is reasonably applied.
New York officials responded to the Supreme Court’s denial of an appeal by the Bronx Household of Faith, first denied an application to rent a public school building in 1994, by setting a Feb. 12 deadline for about 60 churches that have been meeting in schools to vacate.
Bob Allen is managing editor of Associated Baptist Press.