[JURIST] The US Court of Appeals for the Second Circuit [official website] ruled [opinion, PDF] Thursday that the New York City Department of Education [official website] can enforce a rule prohibiting outside groups from using school facilities for after-school worship services. The challenge was brought by the Bronx Household of Faith [church website], which was denied use of school facilities after applying through the city’s procedures. New York schools allow the facilities to be used for “social, civic and recreational meetings and entertainments, and other uses pertaining to the welfare of the community,” as long as it is “nonexclusive and … open to the general public,” under NY Education Code § 414(1)(c) [text]. The city issued a new Standard Operating Procedures Manual (SOP) [text, PDF] pursuant to that provision, specifically § 511, that restricts use of school facilities for religious worship services. The Bronx Household of Faith wanted to use the school for worship services which included preaching, teaching, and giving of personal testimonials, followed by a group meal. The court found the rule did not violate the First Amendment [Cornell LII backgrounder] protection for freedom of expression because it was a reasonable conduct restriction. The court said that even though religious worship includes expression, the city was reasonably concerned with violating the Establishment Clause [Cornell LII backgrounder] because “[t]he conduct of a ‘religious worship service’ has the effect of placing centrally, and perhaps even of establishing, the religion in the school.” The court concluded:

that the challenged rule does not constitute viewpoint discrimination because it does not seek to exclude expressions of religious points of view or of religious devotion, but rather excludes for valid non-discriminatory reasons only a type of activity—the conduct of worship services. We also conclude that because Defendants reasonably seek by the rule to avoid violating the Establishment Clause, the exclusion of religious worship services is a reasonable content-based restriction, which does not violate the Free Speech Clause.

Judge John Walker dissented, arguing that the SOP rule was neither a valid view-point restriction nor supported by a reasonable concern of violating the Establishment Clause.

In April, Utah Attorney General Mark Shurtleff [official website] petitioned [JURIST report] the US Supreme Court [official website] to decide whether crosses placed beside highways as memorials to deceased Utah Highway Patrol (UHP) [official website] troopers is an unconstitutional government endorsement of religion. The petition seeks review of an August ruling [JURIST report] by the US Court of Appeals for the Tenth Circuit [official website], which found that “the cross memorials would convey to a reasonable observer that the state of Utah is endorsing Christianity.” Also last month, the US Court of Appeals for the Seventh Circuit [official website] dismissed [JURIST report] a constitutional challenge to the National Day of Prayer (NDP) [official website], overturning an earlier lower court decision [JURIST report] that found the event in violation of the Establishment Clause by representing government-backed encouragement that Americans engage in non-secular activity.