Opposition Brief — Lamb's Chapel v. Center Moriches Union Free School Dist.

-

No. 91-2024 | ELLE D

AUG 7 1992

: IN THE ice. OF THE CLERS

Supreme Court of the united See

OCTOBER TERM 199]

> -

LAMB'S CHAPEL and JOHN STEIGERWALD.,

Petitioners,

—against —

CENTER MORICHES UNION FREE SCHOOL DISTRICT and

LOUISE TRAMONTANO in her official capacity as President

of the Board of Education for Center Moriches Schools,

and NEW YORK STATE ATTORNEY GENERAL'S OFFICE,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR RESPONDENT ATTORNEY GENERAL

IN OPPOSITION TO THE PETITION

FOR CERTIORARI

ROBERT ABRAMS

Attorney General of the

State of New York

Respondent Pro Se

120 Broadway

New York, New York 1027]

(212) 416-863%

JERRY BOON!

Solicitor General

JEFFREY 1. SLONIM*

Assistant Attorney General

Of Counsel

“Counsel of Record

¥ ad bar

oe 1 ee

a

TABLE OF CONTENTS

PAGE

ee a EE 6 dixie Sun duivuecedcdecccesbanewidueks i

TABLE OF AUTHORITIES........... i cieuiauasnuaces il

ec... ds Le ee owe Gene ea nael l

BO AEe Eee GE We GAM os bocce ces caccccccesescceces 2

i a OND oe vcba i cinco ceeeus andeuees 2

‘IN cvciv caceaduccchpessesdebanct A

REASONS FOR DENYING THE WRIT.................. 6

1. The decision below is consistent with the deci-

sions of this Court and those of other circuiis .. 6

2. This case does not raise any issue under the

INE UIUD ova cascasevesuncuseesccese< 13

TL a ied nadevnsecncncdcheudsekoenssanenee sunt 15

TABLE OF AUTHORITIES

Cases PAGE

Board of Educ. of Westside Comm. Schools v. Mergens,

GE TE, Se OED Shc cavenscevecciceevascdssevevess 13

Concerned Women for America, Inc. v. Lafayette Co.,

ag ke Re Be le |) re ee re 8-9

Cornelius v. NAACP Legal Defense and Educ. Fund, Inc.,

GED TL Fe achive since ncunceecsss ces De Fe 0a

Country Hills Christian Church v. Unified School Dist.

No. 512, 560 F. Supp. 1207 (D. Kan. 1983).......... 1]

Grace Bible Fellowship, Inc. v. Maine School Adminis-

trative Dist. #5, 941 F.2d 45 (1st Cir. 1991)........ 8, 10

Greer v. Spock, 424 U.S. 828 (1976)... 2.2.2... eee eee ees 6

Gregoire v. Centennial School Dist., 907 F.2d 1366 (3d

Cir.), cert. denied, i11 S. Ct. 253, 112 L. Ed. 2d 211

ROOD cucivccndeandanns 660040046540. igunbebbanessse 8, 10

International Soc. for Krishna Consciousness, Inc. v. Lee,

U.S. . 112 S. Ct. 2711, 60 U.S.L.W. 4749

i es el wenbebeeeesannns 6-7, 12

Knights of the Ku Klux Klan v. Martin Luther King Jr.

Worshippers, 735 F. Supp. 745 (M.D. Tenn. 1990)... 11

Knights of the Ku Klux Klan, Realm of Louisiana v. East

Baton Rouge Parish School Bd., 578 F.2d 1122 (Sth

SE CD i ceecthalenhiseast vee beseee ke din assures 8, 10

Lamb's Chapel v. Center Moriches Union Free Schoo!

District, 770 F. Supp. 91 (E.D.N.Y. 1991) ....4-5, 12-13

Lamb's Chapel v. Center Moriches Union Free School

District, 959 F.2d 381 (2d Cir. 1992) .......... 2, passim

iil

PAGE

Lehman v. City of Shaker Heights, 418 U.S. 298 (1974)... 6

May v. Evansville- Vanderburgh School Corp., 787 F.2d

ces c cde ceescnccccccecccccce )

National Socialist White People’s Party v. Ringers, 473

F.2d 1010 (4th Cir. 1973) (en banc) ............... 10-11

Perry Education Ass'n v. Perry Local Educators Ass'n,

| a a ae b

Salinas v. School Dist. of Kansas City, Mo., 751 F.2d 288

Ee 10

Student Coalition for Peace v. Lower Merion School Dist..

776 F.2d 431 (3d Cir. 1985)..000 0000. 9-10

Trietley v. Board of Educ. of the City of Buffalo, 65

A.D.2d 1, 409 N.Y.S.2d 912 (4th Dep't 1978)...... 3,13

United States Postal Service v. Council of Greenburgh

Civic Ass'’ns, 453 U.S. 114 (1981)....0000.0.0....... 7

Wallace v. Washoe Co. School Dist., 701 F. Supp. 187

SN TEED occ cécccccccccceccccccceccccccccecccces 11

Widmar v. Vincent, 454 U.S. 263 (1981)............... 13,14

Administrative Decisions

Case No. 914, 31 State Dep't Rep. 447 (1924)..........3-4,8

Case No. 1815, 41 State Dep't Rep. 423 (1931) .......... 4,9

Decision No. 10,799, 21 Educ. Dep’t Rep. 585 (1982) ...4, 8

Decision No. 7560, 5 Educ. Dep't Rep. 54 (1965)........ 4,8

Constitution and Statutes

United States Constitution, Amendment!......... 2,5, 13-14

IV

PAGE

ee De OE I vs ahtathicnitasduseytdeeeeeeeuneaanae 5

Laws of 1864, c. 555, title VII, § 52.......................2-3

New York Education Law § 414 .................... 1, passim

New VYook Bépcation Low 6 300 . ....ccccccccccccccccccece 3

IN THE

Supreme Court of the United States

OCTOBER TERM 199]

No. 91-2024

>

LAMB'S CHAPEL and JOHN STEIGERWALD,

Petitioners,

—against—

CENTER MORICHES UNION FREE SCHOOL DISTRICT and

LOUISE TRAMONTANO in her official capacity as President

of the Board of Education for Center Moriches Schools,

and NEW YORK STATE ATTORNEY GENERAL'S OFFICE,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

>

BRIEF FOR RESPONDENT ATTORNEY GENERAL

IN OPPOSITION TO THE PETITION

FOR CERTIORARI

INTRODUCTION

New York State has chosen to make its public schools avail-

able during non-school hours for certain non-school uses,

which are specified in its Education Law § 414. Within the lim-

itations of the list of permissible uses, local school districts

have discretion to consider individual applications to use their

facilities. The state commissioner of education has consistently

———__-

ty

held that uses not included in the statutory designation are

improper. Although the list does not expressly exclude reli-

gious use, a New York appellate court has held that local

school districts do not have discretion to permit such a use

because the statute does not expressly authorize it.

The Court of Appeals for the Second Circuit held in this case

that New York Education Law § 414 did not violate petitioners’

First Amendment rights by failing to authorize their use of a

local public school for concededly religious purposes. That

determination applied settled law to the particular facts pre-

sented in this case. The Second Circuit's application of this

Court's precedents was faithful to those decisions and was con-

sistent with the way in which those precedents have been

applied by other circuits to other facts. The difference in the

outcome of this case from those of the selected cases in other

circuits cited by the petition represents only a difference in the

facts presented, and not a conflict among the circuits on the law

to be applied.

STATEMENT OF THE CASE

a. Education Law § 414

Since at least 1864, New York has not made its public

schools open for indiscriminate use by the general public.

Rather, it has permitted such use only for particular purposes.

New York Education Law § 414 (52a)' sets forth the non-

school purposes for which New York's public schools may be

used. The legislative history of that statute, and its interpre-

tation and implementation by the state commissioner of edu-

cation, demonsirate the strict limitation imposed by the statute

on the discretion of iocal school boards in considering appli-

cations for non-school uses.

New York's public schools were first made available for

after-school use in 1864. Laws of 1864, c. 555, title VII, § 52.

| References to pages of the appendix to the petition appear herein as

3

That statute provided that the schools could be used for only

two purposes:

The trustees, or any of them, if not forbidden by another,

may freely permit the school house, when not in use for

the district school, to be used by persons assembling

therein for the purpose of giving and receiving instruction

in any branch of education or learning, or in the science or

practice of music.

That provision is today embodied in subdivision (a) of section

414(1), which provides that public schools may be used “|flor

the purpose of instruction in any branch of education, learning

or the arts”.

Over the years section 414 and its predecessor statutes have

been amended or re-enacted numerous times, and nine addi-

tional permissible uses of public school property have been

' added as subdivisions (b) through (j) of subsection 414(1). The

use of school property for religious purposes has not been

added to the approved uses set forth in section 414, and the

New York Appellate Division has therefore held that such uses

are beyond the discretion of local school districts. Trietley v.

Board of Educ. of the City of Buffalo, 65 A.D.2d 1, 409

N.Y.S.2d 912 (4th Dep't 1978).

In interpreting section 414, the New York education com-

missioner has consistently prohibited school districts from

allowing their schools to be used for purposes not explicitly

permitted by section 414.? Examples of that interpretation are

found in the following decisions:

Case No. 914, 31 State Dep't Rep. 447 (1924) (trustees

could not rent school to an individual for the purpose of

holding public dances or other forms of entertainment

2 The commissioner's decisions in this area are rendered on adminis.

trative appeals brought under New York Education Law § 310, which

permits aggrieved parties to appeal from any “official act or decision”

of school authorities concerning any “matter under this chapter, or any

. . act pertaining to common schools”. It appears that no such appeal

was brought to the commissioner in the present case.

ttl

4

for which admissions were charged which were not to

be used for an educational or charitable purpose);

Case No. 1815, 41 State Dep't Rep. 423 (1931) (the use of

school building by church societies and denominational

Organizations for entertainments and occasions where

admission fees were charged and used for the benefit of

the churches or the denominational organizations is not

permitted by the Education Law);

Decision No. 7560, 5 Educ. Dep’t Rep. 54 (1965) (school

board properly refused use of school property to labor

union local, as such use is not a “civic” use or other use

“pertaining to the welfare of the community” within the

meaning of section 414); and

Decision No. 10,799, 21 Educ. Dep't Rep. 585 (1982) (use

of public school building for a private commercial ven-

ture violates section 414; the public purposes enumer-

ated in section 414 do not include such use, and the

board of education had no authority to give permission

to use a school facility for any purpose other than those

set forth in the statute).

None of the uses considered by those interpretations was pre-

cluded because it was religious in nature. Instead, like the use

proposed in this case, they were precluded because they had

not been included by the Legislature among the approved uses

of public school property.

b. Proceedings below

Peutioners brought this action for declaratory and injunctive

relief against respondents school district and the president of

its board of education (the “school district”) because of the

school district's refusal to allow petitioners to use local school

facilitics during non-school hours for the pur se of showing

a film series. Lamb's Chapel v. Center Moriches Union Free

School District, 770 F. Supp. 91 (E.D.N.Y. 1991) (16a). Peti-

uioners conceded that the film series was of a religious nature

5

and that its showing was for a religious purpose. 770 F. Supp.

at 92 (18a).

On cross-motions for summary judgment, the district court

found the facts to be undisputed, 770 F. Supp. at 92 (17a), and

granted judgment to the local school district. The district court

found that the school district had not, by its policy or practice,

“opened its doors to groups akin to Lamb's Chapel”, 770 F.

Supp. at 99 (31a-32a), and held that the school district's denial

of petitioners’ applications was viewpoint-neutral and, hence,

constitutional.

On appeal to the Second Circuit, petitioners asserted a chal-

lenge to the constitutionality of Education Law § 414 insofar

as it failed to authorize their desired use of a public school. The

New York Attorney General sought, and was granted, permis-

sion to intervene in defense of that challenge pursuant to 28

U.S.C. § 2403(b).*° The Second Circuit affirmed the judgment.

959 F.2d 381 (2d Cir. 1992) (la). Applying the principles

established by this Court, principally in Cornelius v. NAACP

Legal Defense and Educ. Fund, Inc., 473 U.S. 788 (1985), and

Perry Education Ass'n v. Perry Local Educators Ass'n, 460

U.S. 37 (1983), the Court of Appeals determined that New

York had created in its public schools only a limited public

forum, devoted only to the non-school uses specified in Edu-

cation Law § 414. This case, the Court of Appeals wrote, “pre-

sented [an] outside organization| | seeking access where access

has been limited and all religious use has been barred by pol-

icy and practice”. 959 F.2d at 389 (15a). Accordingly, the court

held that “there is no basis for any claim of First Amendment

violation here” (id.) and affirmed in all respects.

3 The Court of Appeals added the Attorney General to the caption of its

decision as the “New York State Attorney General's Office”.

6

REASONS FOR DENYING THE WRIT

1. The decision below is consistent with the decisions of

this Court and those of other circuits.

This Court has recognized three types of fora for First

Amendment purposes: the “traditional public forum”, the “des-

ignated public forum”, and the “non-public forum”. /nterna-

tional Soc. for Krishna Consciousness, Inc. v. Lee, __ US.

____, 112 S. Ct. 2711, 60 U.S.L.W. 4749 (June 26, 1992): Cor-

nelius vy. NAACP Legal Defense and Educ. Fund, Inc., 473 U.S.

788 (1985); Perry Education Ass'n v. Perry Local Educators

Ass'n, 460 U.S. 37 (1983). A subcategory of the designated

public forum is the “limited public forum”, which arises when

a Slaie designates public property to be used for some purposes,

but not for others. A forum is thus created only for limited pur-

poses, such as use by certain groups or discussion of certain

subjects, Perry, 460 U.S. at 45 n.7 and 48, and is considered a

public forum only as to those speakers for whose benefit the

forum was created, or “entities of similar character”, and not as

to others. /d. at 48.

Petitioners characterize the forum in this case as a designated

public forum and, based on that assumption, claim that the

decision below misapplied the decisions of this Court and con-

flicts with the decisions of other circuits. Their characterization

is inaccurate: the court below correctly determined that this

Case involves a limited forum as that term has been developed

by this Court in Perry and other cases. E.g., Greer v. Spock,

424 U.S. 828, 838 n.10 (1976) (political candidates excluded

from military reservation although other members of the pub-

lic permitted to speak on other subjects), and Lehman vy. City of

Shaker Heights, 418 U.S.298 (1974) (political advertising

excluded from city’s transit system, although other types of

advertising accepted).

As the court below concluded, both the stated policy and the

actual practice regulating access to the school property confirm

the limited nature of the forum created. Because a public forum

can be created only “by intentionally opening a non-traditional

forum for public discourse”, /nternational Soc. for Krishna

Consciousness, 60 U.S.L.W. at 4751, quoting Cornelius, 473

U.S. at 802, courts look “to the policy and practice of the gov-

ernment to ascertain whether it intended to designate a place

not traditionally open to assembly and debate as a public

forum”. Cornelius, 473 U.S.at 802, citing Perry, 460 U.S.at 47.

This Court has held that evidence of that intention may be

found in such factors as the statutory or regulatory scheme gov-

ering use of the property, see Cornelius, 473 U.S.at 805;

United States Postal Service v. Council of Greenburgh Civic

Ass'ns, 453 U.S. 114, 120-26 (1981); or the past policy and

practice in regard to use of the property. See Perry, 460 U.S.-

at 47; Cornelius, 473 U.S.at 804.

Thus, the Second Circuit appropriately looked first to the

text of Education Law § 414, which on its face limits the forum

to the specified uses (959 F.2d at 386-87 [10a-11la]), and then

to the actual practice of the local school district, which showed

that “none of the prior uses pointed to by the [petitioners] was

for religious purposes”. 959 F.2d 388 (13a). Consequently, the

court concluded that the “facilities were limited forums not

opened to religious uses by policy or practice”, 959 F.2d at 388

(14a), and, therefore, that there was “no constitutional violation

in the failure of the School District to afford access to [peti-

tioners]”. /d.

The petition contends that the decision below, denying

access to New York public schools for religious speech, is in

conflict with decisions of the First, Third and Fifth Circuits

(Petition at 12-14). To the contrary, the decision is consistent

with the legal analysis in each of the cases cited by the petition,

and the results differ only because of the difference in the facts

presented. In each of the cases cited by petitioners, a policy or

practice established, as a matter of fact, the “indiscriminate

use” that is a hallmark of the open forum available for all pub-

lic uses. Perry, 460 U.S. at 47. In each of those cases, per-

mission to use the government property was “granted as a

matter of course to all” who sought it. /d. In the present case,

on the other hand, there was only the “selective access” that

“does not transform government property into a public forum”.

Id.

In Grace Bible Fellowship, Inc. v. Maine School Admin. Dist.

#5, 941 F.2d 45 (1st Cir. 1991) (Petition at 12), the local schooi

board's policy was that “any group may use the [school] facil-

ities, as long as they do not seek to propagate or propound a

religious message”, 941 F.2d at 46, and in fact the school dis-

trict was unable to cite a single example of a refusal of access

to any group other than religious organizations. /d. at 47. Sim-

ilarly, Gregoire v. Centennial School Dist., 907 F.2d 1366 (3d

Cir.), cert. denied, 111 S. Ct. 253, 112 L. Ed. 2d 211 (1990)

(Petition at 12), turned on a factual finding that the school dis-

trict, “by its policy and practice, created a designated open

forum” because it rented school facilities to a “wide range of

community groups”. 907 F.2d at 1369.* Further, the school dis-

trict had permitted religious courses in its adult education pro-

gram and then adopted a policy which “explicitly provided for

religious discussion in several contexts”, id. at 1372-73, while

it attempted to exclude certain other religious speech because

of the particular “conversion” message sought to be expressed.

Id. at 1376.

In Knights of the Ku Kiux Klan, Realm of Louisiana vy. East

Baton Rouge Parish School Bd., 578 F.2d 1122 (Sth Cir. 1978)

(Petition at 12), the school board had “historically permitt([ed},

on a continuing and indifferent basis, the use of [school] facil-

ities during non-school hours by private organizations’. 578

F.2d at 1124 (emphasis added). Permission was granted “on a

first-come, first-serve (sic) basis” and “no distinction between

applicants” was made whatsoever. /d. at 1123. And in Con-

cerned Women for America, Inc. v. Lafayette Co., 883 F.2d 32

(Sth Cir. 1989) (Petition at 12), the Fifth Circuit enjoined a pol-

icy of access to a public library which had excluded only “reli-

4 Among the uses allowed in Gregoire were meetings of labor unions

and commercial profit-making ventures which charged admission. 907

F.2d at 1373. Those uses would be precluded in New York under Edu-

cation Law § 414. Compare Commissioner Decision Nos. 7560, 10,799

and 914, discussed above at pages 3-4.

9

gious and political groups”. 883 F.2d at 33. The head librarian

had testified that, “once she determined that a group would not

be meeting for a religious or political purpose, and that there

was room on the calendar, she would grant the group permis-

sion to use the auditorium”. /d.°

The petition also contends that the Seventh Circuit “has

strongly suggested, albeit in dicta, that it would embrace the

{rule for which petitioners argue]” (Petition at 13), citing May

v. Evansville-Vanderburgh School Corp., 787 F.2d 1105, 1113-

14 (7th Cir. 1986). But the most the Seventh Circuit suggested

was that the plaintiff there would have a claim if the school

authority,

“while not obligated to allow teachers or anyone else to

use school premises for meetings, in fact allowed the

premises to be used for any meetings by teachers except

prayer meetings.”

787 F.2d at 1114 (emphasis added). Like the other holdings

cited by the petition, that dictum suggests only that an other-

wise-indiscriminate access policy may not single out religious

use for exclusion. That conclusion is in no way inconsistent

with the Second Circuit's determination that petitioners’ rights

were not infringed by the restricted access granted to New

York's otherwise-non-public school property.°®

5 Among the non-religious purposes for which the library in Concerned

Women for America had been used—and which would likely be barred

in New York by Education Law § 414—were a closed meeting of U.S.

Navy recruiters [compare § 414(1)(c), which requires that meetings “per-

taining to the welfare of the community” be “open to the public” ], and

a United Way meeting at which discussion was held of its funding

requests and budget [compare New York Education Commissioner Case

No. 1815]. 883 F.2d at 34.

6 Indeed, the Seventh Circuit in May, 787 F.2d at 1109, cited with

approval the holding of the Third Circuit in Student Coalition for Peace

v. Lower Merion School Dist., 776 F.2d 431 (3d Cir. 1985). There, as

here, the Court of Appeals upheid a denial of access to school premises,

based solely on the applicant-group’s intended use of the school, because

“the school had in the past also rejected requests to use the field by

{other} nonschool sponsored groups”. 776 F.2d at 434. In addition, as in

10

New York has not “seiectively exclude[d]" users, on the

basis of their religious speech or otherwise, as petitioners con-

tend (Petition at 13), nor has it granted indiscriminate access to

its schools. Instead, New York simply has not designated its

schools as a “public forum for community events”, Student

Coalition for Peace, 776 F.2d at 437, other than for the par-

ticular purposes set forth in Education Law § 414. On the facts

of this case, the Second Circuit correctly held that New York's

schools are “limited forums not open to religious uses”. 959

F.2d at 388 (14a). That holding is consistent with this Court's

forum analysis and is not in conflict witn the holding of any

other circuit.’

The petition’s second argument (Petition at 14) suffers an

infirmity similar to the first and, indeed, relies primarily on the

same decisions. It contends that, because public school facil-

ities in other states have been found to be public fora, then so

must New York's schools. But, again, the petition pays no heed

to the different facts in each of the cases it cites, which explain

the different holdings without any conflict in legal analysis.

Thus, as in Grace Bible Fellowship, Inc. v. Maine School

Admin. Dist. #5, 941 F.2d 45 (1st Cir. 1991) (Petition at 15);

Gregoire v. Centennial School Dist., 907 F.2d 1366 (3d Cir.),

cert. denied, 111 S. Ct. 253, 112 L. Ed. 2d 211 (1990) (Petition

at 15); and Knights of the Ku Klux Klan, Realm of Louisiana vy.

East Baton Rouge Parish School Bd., 578 F.2d 1122 (Sth Cir.

1978) (Petition at 15), which were distinguished above al page

8, National Socialist White People's Party v. Ringers, 473 F.2d

1010 (4th Cir. 1973) (en banc) (Petition at 15), involved a fac-

tual situation in which “no group ha[d} been denied the use of

the present case, the disappointed applicant “ha[d] not met its burden of

showing that. . . permission was in fact granted as a matter of course”.

Id. at 436 (emphasis added).

7 In Salinas v. School Dist. of Kansas City, Mo., 751 F.2d 288 (8th Cir.

1984), also cited by the petition (at 13), the Eighth Circuit considered a

policy that “specifically states that permits will be granted to religious

groups”. 751 F.2d at 290. The policy decision by the Kansas City schoo]

district to open its schools to religious uses does not compel New York

to adopt the same policy. See discussion at page 13, infra.

1]

an available auditorium except the [applicant in that case]”.

473 F.2d at 1013 (emphasis added). The factual record there

showed the school board's “repeated exercise of its discre-

tionary authority to rent the Yorktown High School auditorium

. .0n a first-come first-served basis”. 1d. at 1014 (emphasis

added).

Unlike each of the cases cited by the petition, the historical

record in New York, and the undisputed factual record in this

case, show that neither New York nor the local school district

has been indifferent to the nature of applications for non-school

use of public schools. Rather, the state education commis-

sioner, the New York courts and the local school district

involved in this case have all consistently limited the use of

New York’s public schools to the specific purposes set forth in

Education Law § 414, and precluded all other applications, not

just petitioners’. In short, neither petitioners nor their requested

use have been singled out from an otherwise-indiscriminate use

policy. Compare Petition at 16-17.*

Petitioners next argue in the alternative that, “even if the rel-

evant forum is deemed nonpublic”, the Second Circuit decision

conflicts with decisions of this Coun (Petition at 17). The peti-

i) The district court decisions cited by the petition (at 16), like the court

of appeals decisions on which it relies, also deal with factual circum-

stances substantially different from those at issue here. Knights of the Ku

Klux Klan v. Martin Luther King Jr. Worshippers, 735 F. Supp. 745, 752

(M.D. Tenn. 1990), held that a public school which was “ordinarily used

for public events of all types” (emphasis added) could not be “dis-

criminatorily closed” to one organization. Wallace v. Washoe Co. School

Dist., 701 F. Supp. 187 (D. Nev. 1988), decided that a school district

which had effectively placed no restrictions on the organizations that

could use its facilities had created a public forum, but also held that the

school district could nevertheless deny a church's application to convert

a portion of the high school into a permanent site for church services and

activities. And the school district in Country Hills Christian Church v.

Unified School Dist. No. 512, 560 F. Supp. 1207 (D. Kan. 1983), had

established a record of allowing indiscriminate public use of its facili-

ties, including use by some area churches, and therefore could not sin-

gle out one use for exclusion. 560 F. Supp. at 1211 (Finding # 20), as

amended, id. at 1221.

12

tion misapprehends this Court's precedents, whereas the Sec-

ond Circuit followed them appropriately.

Implicit in the concept of the nonpublic forum is the right to

make distinctions in access on the basis of subject matter, so

long as the distinctions are reasonable. Perry, 460 U.S. at 49.

See also Internationai Soc. for Krishna Consciousness, 60

U.S.L.W. at 4752. New York has made such a distinction here

by designating the particular purposes for which its schools

may be used. It has not excluded religious matters from an

open forum; rather, it has created a limited forum, for specified

uses Only, and religious use is not among those specified.’

Petitioners’ claim that the “exclusion” here is not viewpoint

neutral (Petition at 18) is also without merit. The exclusion of

a Category of speech is viewpoint neutral so long as it is not

intended to conceal a “bias against the viewpoint advanced by

the excluded speakers”. Cornelius, 473 U.S. at 812. In Cor-

nelius, this Court found the exclusion of “all advocacy groups”

to be facially viewpoint-neutral, but remanded because “the

purported concern to avoid controversy excited by particular

groups may conceal a bias against the viewpoint advanced by

the excluded speakers”. 473 U.S. at 812 (emphasis added). Sig-

nificantly, the groups secking access in Cornelius had “offered

some evidence to cast doubt on [the] genuineness [of the pur-

ported concern]”. /d.

Here, petitioners offered no evidence whatever that the

exclusion of religious speech was designed to hide a bias

against the Evangelical Christian viewpoint they espoused (2a;

and see 4a-6a), as opposed to the religious viewpoints others

might seck to present. The district court found (31a-32a; 4Sa-

9 Petitioners argue that New York's “exclusion” of religious speech

from its public schools is not based on subject matter, but on the content

of their film series (Petition at 18). Even if it were true that, if petitioners

had sought to show a film series with “no references to a religious per.

spective, the series would clearly be unobjectionable”™ (Petition at 18}—

at least so long as it met one of the criteria specified in Education Law

§ 414— in fact the subject matter of their film series was concededly reli

gious (4a-6a). Therefore, it could be excluded from the forum which had

been opened by statute only to certain other subject matters.

13 .

46a), and the Second Circuit affirmed (12a-14a), that no other

groups—regardless of their particular religious viewpoints—

had been permitted to use the Center Moriches schools for reli-

gious purposes. And the New York statute, on its face, permits

no religious use, regardless of viewpoint. Trietley v. Board of

Educ. of the City of Buffalo, 65 A.D.2d 1, 409 N.Y.S.2d 912

(4th Dep't 1978). Plainly, these petitioners were not denied

access to the public school because of their viewpoint, but

because they proposed a use that did not fall into a category

authorized by the statute.

2. This case does not raise any issue under the Estab-

lishment Clause.

The final issue posed by the Petition (19-21) contends that

the decision of the Second Circuit is in conflict with this

Court's decisions under the Establishment Clause. There is no

basis to the contention.

The Establishment Clause permits the adoption of a policy of

equal access to public school property. Board of Educ. of West-

side Comm. Schools v. Mergens, 496 U.S. 226 (1990); Widmar

v. Vincent, 454 U.S. 263 (1981). However, nothing in the peti-

tion supports an extension of those cases to hold that the Estab-

lishment Clause requires the adoption of such a policy. As the

district court observed:

“(T]he question to be decided by this Court, post-Mer-

gens, is not whether the school district may, under cir-

cumstances where its policy, practice or state law

otherwise provide for such access, open its forum to reli-

gious use, but whether it must open its forum to such use

in the face of a policy, practice and in New York a State

legislative enactment (§ 414 [of the] Education Law)

which specifically prohibits such use. . . . This Court

finds no such mandate in the Mergens decision.”

770 F. Supp. at 96 (26a) (emphasis original; internal quotations

omitted).

14

The petition also argues that the Establishment Clause is vio-

lated here because “an educational institution which excludes

private religious speech ‘would need to determine which words

and activities fall within’ ” that category. Petition at 20, quot-

ing Widmar, 454 U.S. at 272 n.11. Thus, the petition contends,

the school authority “would inevitably entangle itself uncon-

Stituuionally with religious affairs by the mere enforcement of

its policy of religious exclusion” (Petition at 20).

That question is not properly presented here. There was no

dispute in either court below, as there is no dispute here, that

the events petitioners wished to conduct were religious in

nature. Indeed, petitioners’ applications stated that their

“paramount objective [was] to share the love of Christ” (4a):

that their film series advocated “a loving home where Christian

values are instilled from an early age” (Sa); and that the film

Series presented “a Christian perspective”. 959 F.2d at 383-84

(6a). Petitioners left no room for doubt that their activities were

religious and, therefore, that those activities were not autho-

rized by Education Law § 414.

15

CONCLUSION

The petition for a writ of certiorari should be denicd. The

decision of the Second Circuit carefully followed this Court's

precedents and differed in its result from cases in other circuits

only because the facts presented here were different. The peti-

tion does not, and cannot, demonstrate that the Second Circuit

has pursued a “deviant course” (Petition 21) by holding that a

State may limit the non-school purposes for which its public

schools may be used.

Dated: New York, New York

August 7, 1992

Respectfully submitted,

ROBERT ABRAMS

Attorney General of the

State of New York

Respondent Pro Se

120 Broadway

New York, New York 10271

Tel. No. (212) 416-8638

JERRY BOONE

Solicitor General

JEFFREY |. SLONIM*

Assistant Attomey Gencral

of counsel

*Counsel of Record