Thursday, November 1, 2012

N.Y. City Contests Church Services in Public Schools

The N.Y. City Education Department doesn’t charge rent to the civic groups that use its schools. The Bronx Household of Faith has taken advantage of the free space to hold worship services in P.S. 15 since 2002.

The N.Y. City Education Department does not want churches to conduct worship services in its public schools. It has tried to eject Bronx Household and other churches.

The church has sued to stay. It has taken the case up and down the court system so many times, that U.S. District Judge Loretta Preska called her June 2012 ruling Bronx IV. Preska decided in favor of Bronx Household, and N.Y. City appealed to the U.S. 2nd Circuit Court of Appeals.

An amicus brief supporting the City said Preska’s ruling “suggests that the Board cannot constitutionally withdraw a subsidy that it never voluntarily provided in the first place, but was instead forced to grant by the district court, because some New York City churches have effectively become ‘hooked’ on the subsidy.” Americans United for Separation of Church and State (AU) filed that amicus brief.

In the case of Bronx III, the church argued that the U.S. Constitution’s Free Speech Clause gave it the right to worship in a public school. In 2011, the 2nd Circuit Court of Appeals disagreed, and Bronx Household sued again (Bronx IV). This time Bronx Household claimed the City’s ban violated the church’s U.S. constitutional right to free exercise of religion.

Preska backed the church. She reasoned that N.Y. City landlords charge such high rents, that the loss of free meeting space would unconstitutionally burden the church’s religious practice. She held that the City could justify such a burden only if the U.S. Supreme Court had specifically banned the worship services as an unconstitutional establishment of religion.

That is, if the U.S. Supreme Court had not forbidden public schools to subsidize worship services, then the U.S. constitution required them to do it.

Preska also asserted that the ban itself established religion, because the City would entangle itself in a church’s affairs when it considered which activities were worship services.

The N.Y. City Bar Association’s amicus brief responded to that claim. It said the Appeals Court already “explicitly has held that the regulation at issue does not foster impermissible entanglement with religion.”

The Bar’s brief says the District Court itself established religion, when it enjoined the City’s regulation. A government action establishes religion if it has the purpose or effect of advancing religion, or if it excessively entangles government with religion.

The brief says the District Court’s injunction has a religious purpose, because its “sole function is to permit religious worship services where none would otherwise take place.”

“The Injunction improperly advances religion.…requiring the City to permit worship services in its schools.…”

“Allowing religious worship in the schools under the Injunction creates excessive entanglement with religion.…the City will be forced to respond to, among other things, complaints about the churches’ proselytizing activities, to monitor church literature to ensure proper disclaimers, and to use excessive caution in issuing permits.…”

The case is Bronx Household of Faith v. N.Y. City (IV).

Gov. Vetoes Ethnocentric Special Ed. Bill

On June 21, the last day of the N.Y. State legislative session, without public notice or discussion, legislators passed a special-education bill that discriminated among children on religious grounds and funded religious schools.

When the friends of public education, including MCPEARL, found out about it, we forcefully urged Gov. Andrew Cuomo to veto the bill and he did.

In June, the Westchester Journal News reported, “Orthodox Jewish groups, which often advocate for parents to be able to choose insular private schools for their children, played a key role in crafting and lobbying for the bill.”

At least one of the bill’s supporters has a strange notion of public education.

The Wall Street Journal interviewed Rabbi Naftuli Weiss, who runs the Jewish Center for Special Education in Brooklyn. “Of particular concern to his families, Rabbi Weiss said, was the moral dangers that could come from integrating his students with other cultures—with revealing dress and violent games and media. ‘It’s a killer for them to see and hear what’s going on,’ he said.”

The bill was deceptively phrased, so hurried legislators at the end of a session could miss its implications.

It required school districts to consider “any possible impact differences between the school environment and the child’s home environment may have on the ability to receive a free appropriate public education. Such determination shall include documentation as to whether these factors would affect the child’s ability to learn.” [italics added]

The bill authorized parents who didn’t like a school district’s decision to sue for religious-school tuition payments.

Of course, school officials should consider the parents’ opinions. The tricky words were any possible and documentation. If parents think their child might possibly learn better among his or her co-religionists, what documents could a district produce in court to prove the parents wrong?

The Westchester Journal News reported that State Senator Suzi Oppenheimer, former chair of the Senate Education Committee, voted for the bill “because it was part of a group of supposedly ‘non-controversial’ bills. “Once she realized the bill’s goals, she said, she decided to write to Cuomo that he should veto it.”

According to the N.Y. Times, “the bill’s chief Assembly sponsor, Helene Weinstein of Brooklyn, issued a statement vowing to ‘continue the fight,’ suggesting she would try to muster the two-thirds majority required to override the veto.” The Times article continued, “James Cultrara, education director of the New York State Catholic Conference, said that if the veto were not overriden, supporters would push for a new version of the bill…to win over some opponents.”

MCPEARL urged the governor to veto the bill. We also wrote to Monroe County’s state legislators and asked them to press for a veto.

In answer to our letter, Assemblyman Mark Johns wrote that he had voted against the bill, because it would place an excessive burden on public school districts.

The following State Senators from Monroe County voted for the bill: Alesi, Robach, Gallivan, and Ranzenhofer. Senators Nozzolio and Maziarz voted against it. The following Monroe County Assemblymen voted for the bill: Hanna, Bronson, Morelle, and Gantt. Assemblymen Reilich, Johns, and Hawley voted against it.

The bill probably violated the N.Y. Constitution’s Art. XI, Sec. 3, which says, “Neither the state nor any subdivision thereof, shall use its property or credit or any public money, or authorize or permit either to be used, directly or indirectly, in aid or maintenance, other than for examination or inspection, of any school or institution of learning wholly or in part under the control or direction of any religious denomination or in which any denominational tenet or doctrine is taught.…”

AU: Districts May & Must Ban Grad Prayers

Americans United for Separation of Church and State (AU) wants the U.S. 2nd Circuit Appeals Court to rule that school districts have a duty as well as a right to cut a prayer from a student’s graduation speech.

“It’s my job to talk about God and see if they like it,” said a Taconic Hills, N.Y. middle-school student called A.M. As co-class president, A.M. got to give a speech at her public school’s Moving Up Ceremony in 2009. She wanted to close her speech with a prayer, but her principal and superintendent said no.

She obeyed, and her mother sued in U.S. District Court, claiming that the school had violated her daughter’s U.S. constitutional right to free speech.

Judge Gary Sharp said the school had a right to censor A.M.’s speech, because it took place at a school sponsored event, was reviewed by school officials, and was therefore the school’s speech.

AU wants more. In a 2012 amicus brief, it says, “Amicus urges the Court to craft its opinion with one eye on the effect it may have on districts and parents who want to bring prayer back into schools by using students to deliver prayers at school events. The court should be careful not to suggest any roadmap for any such efforts, and should be mindful of the concerns of parents and students of minority faiths and beliefs who fear attempts by the majority to impose its religion upon them in the public schools.…”

The case is McKay v. Taconic Hills.