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Legislative Memo: To Amend the Law to Authorize Religious Worship in School Buildings

In June of 2011, the U.S. Court of Appeals for the Second Circuit held in Bronx Household of Faith v. Bd. of Education, 650 F.3d 30 (2nd Cir. 2011) that the New York City Board of Education had acted reasonably – and consistent with constitutional principles – in adopting a policy that prohibits the use of public school facilities for “religious worship services, or otherwise using a school as a house of worship.”

This legislation, A.8800, ignores the central lesson of the Court of Appeals decision and the factual picture that gave rise to the litigation.

In its explicit effort to restore religious worship in public school buildings, this legislation rests upon the impermissible purpose and effect of promoting religion in violation of the Establishment Clause of the federal Constitution. Lemon v. Kurtzman, 403 U.S. 602 (1971).

In its approval of the use of public school buildings for the religious education of children, in Sunday school classes, the legislation also violates the Blaine Amendment as set forth in Article II §3 of the New York Constitution.

The Bronx Household case developed as a result of an effort by an evangelical church to use a public school building on Sunday for the purpose of conducting religious worship services. The use of the building sought by the Church was not limited to the school auditorium but extended to classrooms that were used for religious classes. 650 F.3d at 42.

Moreover, the Church request to use the building for worship and religious education was not limited to a few random Sundays but extended consistently to every Sunday. Id.

When the New York City Board of Education denied Bronx Household’s request, the church sought and ultimately obtained a preliminary injunction, that ran from 2003 until this past year, allowing the continuous use of the schoolhouse as a house of worship on every Sunday.

Bronx Household placed signs in front of the school building to advertise to the entire community that each Sunday the schoolhouse would serve as a house of worship. Id.

This arrangement undoubtedly created the impression within the community that the most prominent government building in the neighborhood was being used as a church. As the Court of Appeals observed, “the Board [of Education] could … reasonably worry that the regular, long-term conversion of schools into state-subsidized churches on Sundays would violate the Establishment Clause by reason of public perception of endorsement.”

In essence, the practices of Bronx Household merged public schools and churches into one building. Such a merger is inconsistent with the wall of separation that should exist between the two. A.8800/Castro would compound the problem.

The Supreme Court has held that the Establishment Clause prohibits laws whose purpose is to promote religion; and those whose principal or primary effect is one that advances religion.

A.8800 violates both of these standards. Lemon v. Kurtzman, 403 U.S. 602, 612 (1971). In its response to the Bronx Household decision, the legislation constitutes a purposeful attempt to promote religious worship in public school buildings and its primary effect will be to do so.

In addition, this legislation violates Article II § 3 of the State Constitution which prohibits the use of government “property … directly or indirectly, in aid … of any school or institution of learning … under the control or direction of any religious denomination.” In approving Sunday school religious classes in a public school, the legislation ignores this prohibition.

When schools become churches

As of 2005, according to court records, more than twenty congregations other than Bronx Household of Faith have used school buildings for regular Sunday worship services. And that number has increased significantly according to presentations made in court by attorneys for the City.

There is a concerted effort by evangelical churches to increase this number through what is referred to by church officials as “church planting,” or starting new churches.

The Southern Baptist Convention, the largest Protestant denomination the U.S., claims to be planting 1,700 new churches annually. New York has been identified as a “Strategic Focus City” for the location of new churches. This effort is spearheaded by New Hope New York, which serves more than 213 churches in the metropolitan area.

Many of these churches seek to grow their congregations by establishing churches in New York City schools. Pastor Jack Roberts, a named party in the Bronx Household case, stated the goal quite clearly: “. . . May there be a church . . . in every school in New York City and grow to a large size for the glory of God if that’s what he wants. [1]  

The performance of worship services is the defining event of an organized religion. As explained by Robert Hall, a pastor with the Bronx Household of Faith, the Sunday worship service is the “indispensable integration point for our church.”

And it is for this reason that the New York City Board of Education – in light of the foregoing facts – determined that to permit the use of schools for religious worship services would cross the line that separates church and state.

As the Court of Appeals observed in its ruling,

When worship services are performed in a place, the nature of the site changes. The site is no longer simply a room in a school being used temporarily for some activity. The church has made the school the place for the performance of its rites, and might well appear to have established itself there. The place has, at least for a time, become the church. [2]   [Emphasis in the opinion.]

The Establishment Clause: separation of church and state

The Supreme Court has ruled that, under the federal Constitution, [3]   public schools may be used for certain types of activities related to religion, including instruction and discussion of religious ideas, the singing of hymns, and even prayer. [4]  

But the conduct at issue in Bronx Household is something quite different: the use of a school for religious services, as if the school were actually a church.

To endorse this conduct as a matter of public policy is to put government on a collision course with the First Amendment. And for this reason the Second Circuit found that officials at the Board of Education had a sound basis for concern that permitting the use of schools for religious worship services “would give rise to a sufficient appearance of endorsement to constitute a violation of the Establishment Clause.” [5]  

In 1971 the Supreme Court established a test for determining whether such a violation has occurred. In order to avoid becoming entangled in religion the conduct of government (1) “must have a secular . . . purpose,” (2) must have a “principal or primary effect . . . that neither advances nor inhibits religion,” and (3) must not foster an excessive entanglement with religion.” [6]  

The record in the matter of Bronx Household demonstrates that a policy allowing religious worship services in public schools fails the test established by the Supreme Court. 

Government endorsement of religion

The Second Circuit Court of Appeals observed in its Bronx Household opinion that Board of Education officials had justification for their concern that the “regular, long-term conversion of schools into state subsidized churches on Sundays would violate the Establishment Clause by reason of public perception of endorsement.” [7]

This concern was vindicated by what occurred in the seven years following a federal district court ruling that upheld the policy allowing religious services in New York City schools. “Bronx Household of Faith held its worship service at P.S. 15 and nowhere else, every Sunday since 2002.” [8]  

“During these services,” the court added, “the schools are dominated by church use,” using the largest room, or multiple rooms, sometimes for the entire day. [9]   Members of these churches distribute flyers and post signs; they proselytize outside school buildings. In some instances the church is the only outside organization using space in a school. “Accordingly,” the court concluded, “on Sundays some schools effectively become churches.” [10]  

As a result, “both church congregants and members of the public identify the churches with schools.” [11]   The confusion created regarding institutions of church and state is most troubling as regards the impact on young people. It is they who become most susceptible to mistaking the school for a church – and the church for a school – when government fails to keep the two separate.

The Supreme Court has observed that concerns regarding the state’s endorsement of religion becomes most acute when “young, impressionable students are involved” because they “might easily mistake the consequence of a neutral policy for endorsement.” [12]   

Government’s favoring of one religion over another

Christian religions prescribe Sunday as the principal day of worship; and schools are typically unavailable for such events on other days of the week. School buildings are typically used on Saturdays for educational, extra-curricular and other types of programs. Therefore school facilities would generally be unavailable to Jews and Muslims on the days prescribed for their religious services.

What’s more, Christian congregations that use schools for worship services do not offer to the general public the same degree of access offered to church members – a violation of state law. [13]  

Indeed those who do not belong to a church may be excluded from its services and facilities. Bronx Household of Faith, for example, excludes persons who are not baptized, as well as those who advocate the Islamic religion. [14]  

This circumstance led the Second Circuit court to observe that education officials at the Board of Education “could have reasonably concluded that what the public would see, were the Board not to exclude religious services, is public schools which serve on Sundays as state-sponsored Christian churches.” [15]   

Government subsidies to religious organizations

Churches, including Bronx Household of Faith, that were using public schools for religious worship services (prior to adoption of the policy prohibiting this practice) paid no rent to the city; nor did these churches pay utility fees. This led the Second Circuit to conclude that the “City foots a major portion of the costs of the operation of a church.” [16]  

This fact also informed the determination of the Board of Education that to allow such activity in public schools would involve the government in subsidizing religion — and in so doing, would entangle the government with religion in a manner that violated the Establishment Clause of the Constitution. 


In prohibiting the use of schools for religious worship services, the New York City Board of Education adopted the correct policy – it was the only option available in this circumstance that comports with principles of sound governance and a constitutional democracy.

The New York State Legislature is likewise bound by these principles as regards A.8800. In a 1995 Supreme Court ruling, Justice Sandra Day O’Connor spoke to the duty and obligation of state officials in matters of church and state:

The Establishment Clause imposes affirmative obligations that may require a State, in some situations, to take steps to avoid being perceived as supporting or endorsing a private religious message. That is, the Establishment Clause forbids a State from hiding behind the application of formally neutral criteria and remaining studiously oblivious to the effects of its actions.

. . . Where the government’s operation of a public forum has the effect of endorsing religion, even if the governmental actor neither intends nor actively encourages that result . . . the Establishment Clause is violated. This is so . . . because the State’s own actions (operating the forum in a particular manner and permitting the religious expression to take place therein), and their relationship to the private speech at issue, actually convey a message of endorsement. [17]  

For the forgoing reasons the legislature must reject A.8800.


[1]   This comment and other quotations from the court record cited in this memorandum appear in deposition transcripts and other court documents compiled in the litigation of Bronx Household v. New York City Board of Education, 226 F. Spp. 2d 401 (S.D.N.Y 2002), aff’d 331 F.3d 3 342, 346 (2d Cir. 2003). These court documents are on file with the NYCLU.

[2]   Bronx Household at 18.

[3]   The Supreme Court did not address whether such a scheme would violate the Blaine Amendment set forth in State Constitution. And central to the Court’s opinion was the conclusion that the occasional activity at issue in that case did not come close to presenting an Establishment Clause violation. Id. 553 at 113.

[4]   See, e.g., Good News Club v. Milford Central School, 553 U.S. 98 (2001).

[5]   Bronx Household at 40.

[6]   Lemon v. Kurtzman, 403 U.S. 602 (1971)

[7]   Bronx Household at 42.

[8]   Id. at 19.

[9]   Id. At 42.

[10]   Id. at 20.

[11]   Id.

[12]   Van Orden v. Perry, 445 U.S. 677, 73 (2005) (Bryer, J., concurring).

[13]   See NY Education Code §414 (1)(c) (Local public school districts may permit the use of facilities outside of school hours for purposes such as “social, civic and recreational meetings and entertainments, and other uses pertaining to the welfare of the community,” as long as the uses are “nonexclusive and . . . open to the general public.”)

[14]   Bronx Household at 43.

[15]   Id. at 41.

[16]   Id.

[17]   Capitol Square Review & Advisory Board v. Pinette, 515 U.S. 753, 777-778 (1995).

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