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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1993
- **Citation:** 508 U.S. 384

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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 Borad of Education for Center Moriches Schools,
and NEW YORK STATE ATTORNEY GENERAL'S OFFICE,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT

>

BRIEF FOR RESPONDENT ATTORNEY GENERAL

STATEMENT OF THE CASE

New York has never opened its schools to indiscriminate use
by the public at large when school is not in session. Instead, it
has provided each of the more than 700 school districts in the -
state with limited discretion to determine whether to allow their
local schools to be used for any of the particular purposes set
forth in Education Law § 414.

The statutory list of uses which a school district may permit
does not include religious use. The Court of Appeals for the
Second Circuit held in this case that petitioners’ First Amend-
ment rights were not violated by the absence of authority for

2

their use of a local school for concededly religious purposes.
In reaching that conclusion, the Second Circuit was faithful to
the First Amendment and to this Court's precedents, and its
judgment upholding the statute should be affirmed.

A. Education Law § 414

Since at least the middle of the last century, New York has
scrupulously reserved its public schools for only particular
non-school uses. Those uses are set forth in New York Edu-
cation Law § 414 (52a).' New York intended, by allowing cer-
tain non-school uses of its school buildings, to provide a
benefit only to the local community and to do so without sac-
rificing the schools’ identities as such, even during the hours
when students are not being taught within their walls. The leg-
islative history of the statute, and its interpretation and imple-
mentation by the state commissioner of education, demonstrate
the strict limitation imposed on the discretion of local school
boards in considering applications for non-school uses.

1. History of the statute

The first reference in New York codes to the extra-curricu-
lar use of public schools was enacted in 1864, when the state
legislature passed an act to “revise and consolidate” the general
laws relating to public instruction. Laws of 1864, chapter 555.
That act provided that the trustees of a school district

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.

Id., title VII, § 52.?

l References to pages of the appendix to the petition appear herein
as “—a”.

2 That provision was codified in 1909 as Education Law § 114,
Laws of 1909, chapter 21, and entitled “Use of School-house out of
school hours”. /d. lt was recodified as section 455 in 1910. Laws of
1910, chapter 140.

3

By 1913 the question of non-school use of school buildings
had become a nationwide issue. See, e.g., J.H. Bush, Use of
School Buildings for Other Than School Purposes, 20 CASE
AND COMMENT 255 (1913) (collecting cases); Note, Use of
Public School Property for Other than School Purposes, 50
L.R.A. (N.S.) 1182 (1914). See also Fact and Comment, 80
THE SCHOOL JOURNAL 153 (March 1913) (reporting that Col-
orado voters had disapproved a measure providing for wider
use and control of school buildings by the people, and also
reporting on the efforts of Logansport, Indiana, to make its new
schoolhouse a “social center”). “Probably the most frequent use
for which school buildings were demanded was for religious
meetings”, Bush, supra, 20 CASE AND COMMENT at 256, and
the cases which considered the right to such use—which the
author found to be “surprisingly few in number’—were in con-
flict. Jd. See also id. at 256-57 (collecting cases).

The issue of extending the use of its school buildings arose
in New York as well. Ninth Annual Report of the Education
Department (“1913 Report’) at 41 (February 3, 1913). In its
report to the Legislature, the Education Department pointed
approvingly to the contemporary Wisconsin law, which pro-
vided in substance that school buildings could be used for the
“presentation and discussion of public questions” when they
were not needed for school purposes, and that those buildings
could “also be used fui such other civic, social and recreational
activities as do not interfere with their proper use”. /d.°

3 The Wisconsin law to which the 1913 Report referred was appar-
ently Chapter 27, § 435d(1) of the Wisconsin Statutes (1911), enti-
tled “Nonpartisan gatherings of citizens”, which provided:

Upon application of not less than one-half of the voters residing
in the district, the school board or other body having charge of
schoolhouses or other public buildings or grounds, which are
capable of being more widely used as public meeting places for
nonpartisan gatherings of citizens, for the presentation and dis-
cussion of public questions or for other civic, social or recre-
ational activities, shall ailow the use of such buildings or grounds
for the open presentation and free discussion of public questions,
and may allow the use of such buildings or grounds for such other
civic, social and recreational activities as in the opinion of the

- 4

Shortly after the Education Department made its 1913 annual
report, the New York Legislature passed “An act to amend the
education law, relative to the powers of voters of schoo! dis-
tricts, and extending the use of school buildings” as part of a
package of education-reform bills. Laws of 1913, chapter 221.‘
See Current Topics, 39 THE SCHOOL BULLETIN 419-20 (June
1913). Among other changes, the act replaced Education Law
§ 455 with a new text allowing more extensive use of school
buildings after school hours and spelling out the five categories
of permissible uses. The new section 455, which was later
renumbered as section 414, Laws of 1947, chapter 820, con-
tained provisions substantially identical to certain of those
found in paragraphs (1)(a) through (1)(e) of current Ed ation
Law § 414(1), the statute at issue in this case.

2. Administrative interpretation

New York law gives the state commissioner of education
authority to decide administrative appeals regarding the appli-
cation of Education Law § 414. See Education Law § 310.° The
commissioner's decisions reaffirm that the State’s purpose in
allowing extra-curricular use of its school buildings was to
enhance the community service of the school buildings, not
simply to provide public meeting halls. As the commissioner
wrote in 1926:

Schools are established and maintained for a definite and
specific purpose, to wit, the secular education of the youth

controlling board do not interfere with the prime purpose of the
building or grounds.

Wisconsin has since that time replaced that statute with one that pro-
vides, in part, that “[nJothing in this section prohibits the board from
granting the use of school property to religious organizations [for
temporary use}”. Wisconsin Statutes Annotated 119.70(5) (1991 &
Supp. 1992).

4 The direct legislative history for New York laws of that period is
only rarely available. See E.M. Gibson, New York Legal Research
Guide 104-05, 110 (1988). The direct history of the statute at issue
here is not among those available.

5 Petitioners here did not pursue the administrative remedy avail-
able to them under the Education Law.

5

of the State, and any activity within the scope of that pur-
pose or tending to promote the welfare of the schools and
the community should be allowed and encouraged.

Appeal of American Civil Liberties Union, 36 State Dep't Rep.
87, 97 (Educ. Dep't 1926).° “The Legislature never intended to
throw the school buildings wide open as public forums where
Organizations and societies of every kind can assemble and dis-
cuss subjects of every nature.” /d. at 98.

That view was echoed by the commissioner nearly 60 years
later in dismissing an appeal from the denial of permission to
distribute religious literature on school grounds:

Implicit in [the applicant)’s argument is a misperception
that the schools are a public forum open to all members of
the community. Schools are not public places in the sense
that their use may be demanded as a matter of right by an
individual.

Appeal of Rathjen, 22 Educ. Dep't Rep. 595, 598 (1983) (cita-
tion omitted). In Appeal of Ellis, 77 State Dep’t Rep. 32, 34
(Educ. Dep't 1956), the commissioner held that

School buildings are erected for one purpose only, to pro-
vide a place in which the school district can instruct the
pupils of the district. It is not a public building in any
other sense. . . . No one other than teachers and pupils
is entitled to access to the building generally. Even par-
ents can be prevented from wandering about at will.

The school’s auditorium, gymnasium and cafeteria, the type of
large space presumably at issue here, were considered “class-
rooms exactly the same as any other place in the school used
for assembly and instruction of pupils.” /d.

Within the authority granted by section 414, local school dis-
tricts have discretion to determine how their schools may be

6 From 1913 to April 1, 1958, judicial decisions of the Commis-
sioner of Education were reported, together with those of other New
York State agencies, in State Department Reports. Since April 1,
1958, they have been reported in Education Department Reports. See
Foreword, | Educ. Dep't Rep. iv, vii-viii (1962).

6

used. See Formal Opinion of Counsel No. 227, 8 Educ. Dep't
Rep. 225 (Educ. Dep't 1968). As the commissioner noted in
dictum in Appeal of Scanio, 22 Educ. Dep't Rep. 315, 317
(1982), the discretion of local school boards is “not unlimited”,
even as to uses by such a closely school-related organization as
the PTA. Accordingly, the commissioner has repeatedly pro-
hibited school districts from allowing their schools to be used
for purposes not explicitly provided by the statute.

In one of the earliest reported administrative decisions under
the statute, Appeal of Kennedy, 2 State Dep't Rep. 625 (Educ.
Dep't 1914), the commissioner sustained an appeal by a district
resident complaining that a local trustee had permitted a “reli-
gious sect or denomination” to use the school house on certain
evenings and on Sundays. The commissioner held that section
414

specifies the purposes for which a school house and the
rooms therein may be used outside of school hours. The
use thereof is not permissible for any other purpose than
those specified. The use for meetings conducted by a reli-
gious sect or denomination is not included within the uses
expressly authorized by the statute, and such a use is
therefore unlawful.

Id. at 625. See also Rathjen, 22 Educ. Dep't Rep. at 598, find-
ing that “[rjeligious purposes are not among those enumerated
in Education Law § 414”.

Other examples of proposed uses which were held to fall out-
side the authorization of section 414 are the “use of a school
facility for a private commercial venture”, Appeal of Board of
Educ. of City School Dist. of City of Buffalo, 21 Educ. Dep't
Rep. 585, 588 (1982); meetings of labor union locals, Appeal
of Brett, 5 Educ. Dep't Rep. 54 (1965); and even school-related
uses, such as the storage of school buses on school grounds.
Appeal of Weiss, 19 Educ. Dep’t Rep. 308 (1979). Rental of
school property was formerly held to be unauthorized, Appeal
of Steflovich, 7 Educ. Dep't Rep. 76 (1967), but in 1976 the
Legislature added limited authority to rent public schools for

—_ =

7

the purposes set out in certain paragraphs of subsection 414(1).
See Education Law § 414(2).

A community may not override the statutory limitations on
its use of public schools other than as provided in the statute
itself. Appeal from Action of the Trustees of District No. |,
Town of Mohawk, 31 State Dep't Rep. 447 (Educ. Dep't 1924)
(public dances for individual's financial benefit); Appeal in
Relation to Use of School Building in U.F.S.D. No. 3, Town of
Clarkstown, 41 State Dep't Rep. 423 (Educ. Dep't 1931) (polit-
ical meetings or rallies). Nor can a use expressly precluded by
one provision of the statute be permitted under another. In
Appeal of Gaskin, | Educ. Dep't Rep. 673 (1961), the com-
missioner found improper a political meeting held in a school
building, despite the local board's belief that the meeting was
“civic” within the meaning of subdivision 3 of section 414
[now paragraph (1)(c)], because subdivision 5 [now paragraph
(1)(e)] expressly precluded ihe use.

By contrast, where the commissioner has upheld proposed
uses, they have emphasized the statute's intention to serve the
community rather than provide a forum for debate. See, e.g.,
Appeal of Alcorn, 24 Educ. Dep't Rep. 201, 204 (1984) (school
facilities could be used for training session concerned with
safety at a nearby nuclear plant because that use “pertained to
the welfare of the community as a whole”); Appeal of Erdberg,
26 Educ. Dep't Rep. 464 (1987) (“flea market” held on school
grounds for the purpose of raising funds for educational pro-
grams, not otherwise available to the students, “clearly per-
tain[ed) to the welfare of the community served by” the school
and was permissible).

B. Proceedings Below

Petitioners brought this action for declaratory and injunctive
relief against respondents school district and the president of
its board of education (the “local school district”) because the
local school district refused to allow petitioners to use local
school facilities during non-school hours for the purpose of
showing a film series. Lamb's Chapel v. Center Moriches

Union Free School Dist., 770 F. Supp. 91 (E.D.N.Y. 1991)
(16a). Petitioners conceded that the film series was of a reli-

gious nature and that its showing was for a religious purpose.
Id. 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 local school district had not, by its policy or
practice, “opened its doors to groups akin to Lamb's Chapel”,
id. 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).

Applying the principles established by this Coun, primarily
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 a limited public forum,
devoting its public schools only to the 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”. Lamb's Chapel v. Center Moriches Union
Free School Dist., 959 F.2d 381, 389 (2d Cir. 1992) (15a).
Accordingly, the court held that “there is no basis for any claim
of First Amendment violation here” (id.), and affirmed in all
respects.

This Court granted certiorari on October 5, 1992. 113 S. Ct.
51 (1992).

9

SUMMARY OF ARGUMENT

The court of appeals correctly held that New York has cre-
ated a limited forum in its public schools, as evidenced by the
language of Education Law § 414. Its definition of the forum
is consistent with this Court's decisions which recognize that,
in opening an otherwise nonpublic forum, the state may limit
the subject matter which may be presented.

Having defined the forum, the court correctly determined
that the absence of religion from the list of uses permitted by
the statute is both reasonable and viewpoint neutral and, there-
fore, constitutional. The statute draws a reasonable distinction
between the use of schools for non-school purposes that serve
the interests of the public in general, not purposes that serve
the private interests of one group seeking to attract adherents
to its point of view or, as here, to “instill[ |” its values in the
community's children “from an early age” (JA-86).’ Religion
is inherently such a private interest. The statute is viewpoint
neutral because it does not authorize the presentation of any
individual viewpoint for a purpose not included in the statute.
In this case, petitioners were denied access not because they
admittedly sought to present a Christian perspective, but
because activities having a religious purpose are not a use per-
mitted by the statute.

Petitioners’ principal challenge to the constitutionality of
Education Law § 414 is based on a flawed premise: that by
allowing the schools to be used for “social, civic and recre-
ational meetings and entertainments, and other uses pertaining
to the welfare of the community” pursuant to Education Law
§ 414(1)(c), New York has created a public forum in its
schools, which is open to virtually any outside group for
expressive activities. See, e.g., Brief for Petitioners (“Pet. Br.”)
at 19. That argument overlooks the language of the statute
itself, which includes nine other permitted categories of use
which would be wholly unnecessary if petitioners were correct.

7 References to pages of the joint appendix appear herein as
“JA- ~e

10

It also ignores numerous decisions by the commissioner of edu-
cation finding uses other than religion unauthorized either by
the paragraph on which petitioners rely or by the statute gen-
erally.

Petitioners’ characterization of New York's policy as a form
of “censorship” is equally without merit. Pet. Br. at 31; Brief
Amicus Curiae of the Christian Legal Society et al. (“Christian
Legal Soc. Br.”) at 5. New York does not refer to religion or
religious speech in the statutory provision at issue here, and
does not single out religion for exclusion from non-school uses
of its public schools. The commissioner's decisions illustrate
that there are other non-permitted uses, having nothing what-
ever to do with religion.

There is no dispute that, if New York chose to do so, it could
create the public forum for which petitioners advocate without
offending the Establishment Clause. The decisions on which
petitioners rely, Board of Educ. of Westside Comm. Schools v.
Mergens, 496 U.S. 226 (1990), and Widmar v. Vincent, 454
U.S. 263 (1981), made clear that an equal-access policy would
not violate the Establishment Clause of the First Amendment.
New York has not adopted such a policy, and neither,Mergens
nor Widmar requires that it, or any other state, do so. Peti-
tioners have cited no authority for the proposition that lies at
the heart of their case: that a state, having once opened its pub-
lic schools for limited, specified purposes, must, as a matter of
constitutional mandate, add religious uses to the list.

The result urged by petitioners in this case would strip the
state and localities of control over their public school facilities
and allow them but a single choice: prohibit all non-school use
of public school property, regardless of the civic or community
value it might offer, and keep the school buildings in darkness
whenever students are not being taught; or open those facilities
to all applicants, regardless of their intended uses, on a first-
come, first-served basis. The former option needlessly restricts
the use of important, and often centrally located, public prop-
erty, while the latter converts it into a public meeting hall
available for rental by anyone willing to pay the price. A state

1]

might choose to adopt either of those courses, but the First
Amendment does not demand that its options be so limited.

ARGUMENT
I

THE CONSTITUTION DOES NOT REQUIRE NEW
YORK TO EXTEND ITS LIMITED SCHOOL FORA
TO RELIGIOUS USES.

The First Amendment does not guarantee a right of access to
all publicly-owned property merely because il is owned or con-
trolled by the government. United States Postal Service v.
Council of Greenburgh Civic Ass' ns, 453 U.S. 114, 129 (1981).
The State, no less than a private owner of property, has power
to preserve the property under its control for the use to which
it is lawfully dedicated. Adderley v. State of Florida, 385 U.S.
39, 47 (1966). The existence of a right of access to public prop-
erty, and the extent to which the government may place restric-
tions on that right, depends on the character of the property, or
“forum”, at issue. /nternational Soc. for Krishna Conscious-
ness, Inc. {“ISKCON” ] v. Lee, 112 S. Ct. 2701 (1992); Cor-
nelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 U.S.
788 (1985); Perry Education Ass'n v. Perry Loca! Educators’
Ass'n, 460 U.S. 37, 44 (1983).

A. General Principles of Forum Analysis.

Three categories of fora have been recognized for First
Amendment purposes. The “traditional public forum” includes
streets, parks and other areas which “by long tradition or by
government fiat have been devoted to assembly and debate”.
Cornelius, 473 U.S. at 802 (quoting Perry, 460 U.S. at 45). See
ISKCON v. Lee, 112 S. Ct. at 2705-06. The only content-based
exclusions a state may impose on traditional public fora are
those which are narrowly drawn to serve a compelling state
interest. Board of Airport Comm'rs v. Jews for Jesus, Inc., 482
U.S. 569, 573 (1987); Cornelius, 473 U.S. at 800; Perry, 460

12

U.S. at 45. Petitioners have never contended that public schools
are traditional public fora. See Hazelwood School Dist. v. Kuhl-
meier, 484 U.S. 260, 267 (1988).

At the other extreme is the “nonpublic forum”, which
describes public property “not by tradition or designation a
forum for public communication”. Perry, 460 U.S. at 46. See
also ISKCON v. Lee, 112 S. Ct. at 2705. Limitations on
expressive activity conducted on such property must only be
reasonable and not predicated on disagreement with the
speaker's view. /d. at 2705-06. Board of Airport Commis-
sioners, 482 U.S. at 573 (quoting Perry, 460 U.S.at 46).
Accord Cornelius, 473 U.S. at 806. Unlike the rules applica-
ble to public fora, there is no requirement that restrictions on
access to nonpublic fora be “narrowly tailored or the Gov-
ernment’s interest compelling”, nor is it required that a strict
incompatibility exist between the “nature of the speech or the
identity of the speaker and the functioning of the nonpublic
forum”. Cornelius, 473 U.S. at 808, 809. Respondents have
never claimed that New York's public schools are non-public
fora. Indeed, the purpose for enacting Education Law § 414
was to allow the community to benefit from the use of its
schools after school hours.

The third category of forum is the “designated public place”
forum, which is property that the state has intentionally opened
for expressive activity. A designated public forum is not
created by the government's inaction, or by its allowance of
limited discourse, but, rather, by its intent. The courts therefore
look “to the policy and practice of the government 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 (quoting Perry, 460 U.S. at 46). In addition, if the
“objective, physical characteristics” of the property at issue,
together with the actual public access and uses which have
been permitted by the government, indicate that expressive
activity would be “appropriate and compatible” with those
prior uses, then the property has been designated as a public
forum. ISKCON v. Lee, 112 S. Ct. at 2716, 2718 (Kennedy, J.,
concurring in the judgment).

13

A designated forum need not be the equivalent of a tradi-
tional public forum. A state may designate a forum for use by
part or all of the public, /SKCON v. Lee, 112 S. Ct. at 2705, or,
as the court below recognized, it may open the forum only for
the discussion of certain topics. See Cornelius, 473 U.S. at 802,
Perry, 460 U.S. at 46 n.7 and 48. Uses not specified in the des-
ignation of the forum may be excluded in the same way that
uses may be excluded from a non-public forum. Accordingly,
even if the exclusion is based upon subject matter, as in this
case, or the speaker's identity, the exclusion need only be rea-
sonable and viewpoint-neutral to pass constitutional muster.
Cornelius, 473 U.S. at 800; Perry, 460 U.S. at 48. See Board of
Airport Comm'rs, 482 U.S. at 573. See also Greer v. Spock,
424 U.S. 828 (1976) (political candidates can be excluded from
speaking at a military reservation even though other members
of the public are permitted to speak on other subjects); Lehman
v. City of Shaker Heights, 418 U.S. 298 (1974) (city can
exclude political advertising from advertising space in public
transit system); City of Madison, Joint School Dist. No. 8 v.
Wisconsin Employment Rel. Comm., 429 U.S. 167 (1976) (pub-
lic meeting of school board was forum for discussion of mat-
ters relating to school system). See also Deeper Life Christian
Fellowship, Inc. v. Board of Educ., 852 F.2d 676, 680 (2d Cir.
1988).

B. New York’s Schools are “Limited” Public Fora.

The Second Circuit held, correctly, that New York's public
schools fit squarely into the category of limited public fora.
The State has designated its schools to be opened, at the dis-
cretion of the local school district, for non-school use, but has
expressly (and reasonably, see Point 1.D., infra) limited the
purposes for such use through legislated policy and consistent
administrative practice.* Section 414 therefore cannot be read,

8 Because respondent Attorney General intervened to defend the
constitutionality of section 414, he takes no position on the rules
adopted by the local school district or their application in this case.
However, the United States, as amicus curiae, agrees that the loca!
school district was “not wholly indiscriminate” in granting access to

14

and has never been read by New York's education commis-
sioner, to open the schools for “indiscriminate use by the gen-
eral public”, Hazelwood, 484 U.S. at 267 (1988) (quoting
Perry, 460 U.S. at 37), as petitioners contend. Pet. Br. at 18-19.

1. The language of the statute

Section 414 sets forth ten categories of use to which local
school districts may put their schoolhouses. Petitioners isolate
a single one, found in paragraph 414(1)(c), and contend (Pet.
Br. at 19) that the grant of authority to open schools for “social,
civic or recreational” purposes creates a “forum generally open

to the public”, id. (quoting Perry, 460 U.S. at 45). They argue
that

it would be difficult to imagine a more expansive use pol-
icy than one explicitly open to any ‘social, civic, or recre-
ational use’.

Pet. Br. at 19. Amici American Civil Liberties Union et al.
echo the argument. Brief Amicus Curiae of the American Civil
Liberties Union et ai. (“ACLU Br.”) at 15.

The very existence in the statute of nine other designated
categories of use demonstrates the fallacy of petitioners’ argu-
ment. If paragraph (1)(c) alone accomplished the broad forum
petitioners contend, then each of the other categories, found in
paragraphs (1)(a), (b), and (d) through (j), would be superflu-
ous. Yet the statute contains another paragraph providing for a
“civic” use [{ (1)(f)], and still another providing for a use that
easily meets that description, i.e., 9 (1)(e), permitting
use of schools for polling places, voter registration and non-
partisan political meetings. Moreover, since the enactment of
the original statute in 1913, including the “social, civic and
recreational” authority on which petitioners rely, the Legisla-
ture has amended or added to the statute no fewer than sixteen
times. It is a basic principle of statutory construction that a
Statute should not be construed in such a way as to render any

its after-school forum. Brief for the United States as Amicus Curiae
Supporting Petitioners (“United States Br.”) at 11.

15

of its provisions superfluous or insignificant. Rosado v. Wyman,
397 U.S. 397, 415 (1970). See Woodfork v. Marine Cooks &
Stewards Union, 642 F.2d 966, 970-71 (Sth Cir. 1981) (quoting
Zeigler Coal Co. v. Kleppe, 536 F.2d 398, 406 (D.C. Cir. 1976)).
The construction urged by petitioners, that paragraph (1)(c) is
all-encompassing and opens the schools indiscriminately to all
public non-school uses, would produce just that result.

2. Administrative interpretations of Section 414

The administrative interpretations of section 414 have con-
firmed that its reach is limited and not “expansive”. See pages
4 through 7, supra. As this Court wrote in Perry, “selective
access does not transform government property into a public
forum”. 460 U.S. at 47. See also Cornelius, 473 U.S. at 802.

As early as 1914, the year after the statute's enactment, the
commissioner determined that because “religious use” was not
included in the language of section 414, it was not included in
the forum created by the statute. Appeal of Kennedy, 2 State
Dep't Rep. 625 (Educ. Dep’t 1914) (“The use [of the school
house] is not permissible for any other purpose than those spec-
ified.”). The New York Appellate Division held essentially the
same thing, for the same reason, in Trietley v. Board of Educ.,
65 A.D.2d 1, 409 N.Y.S.2d 912 (4th Dep’t 1978), and the Sec-
ond Circuit adopted that holding in Deeper Life Christian
Fellowship, Inc. v. Board of Educ., 852 F.2d 676, 680 (2d Cir.
1988), and in this case. 959 F.2d at 386-87 (10a-11a).? Compare
Lewis v. Board of Educ., 247 App. Div. 106, 286 N.Y.S. 174
(1st Dep't), rearg. and motion denied, 247 App. Div. 873, 288
N.Y.S. 751 (1st Dep’t 1936), appeal dismissed, 276 N.Y. 490,

9 The United States (United States Br. at 3 n.2), suggests that
Trietley would probably be decided di .erently under the Equal
Access Act, which was passed after the case was decided. That result
would not change the interpretation of the statute adopted by the Sec-
ond Circuit. If the meaning ascribed to a state statute by a court of
appeals is a rational construction of the statute and is not “plainly
wrong”, this Court will normally accept it. Edwards v. Aguillard, 482
U.S. 578, 609 (1987) (White, J., concurring in the judgment) (col-
lecting cases). That “usual rule” applies in First Amendment cases
like this one. /d.

16

12 N.E.2d 172 (1937), in which the Appellate Division held
that religious organizations are permitted to use the public
schools “for the conduct of ethical, educational, and cultural

purposes, [but] in no way for the inculcation of religious
tenets” (emphasis added). '°

The detail with which the New York Legislature wrote its
grant of authority to local school districts to open their school
buildings, together with the consistent history of its application
in the nearly eighty years of its existence, demonstrate that
New York has not, by intention or by practice, created the sort
of indiscriminate access that marks a forum designated to be
public for all purposes. Public access to the closed after-hours
schools is not “inherent in the open nature of the locations”, as
it is for most streets and parks, but remains, in each instance,
a “matter of grace by government officials”. ISKCON v. Lee,
112 S. Ct. at 2711 (O'Connor, J., concurring) (quoting United
States v. Kokinda, 497 U.S. 720, 743 (1990) (Brennan, J., dis-
senting)). The Second Circuit therefore correctly held that New
York treats its schools, by statute and by administrative prac-
tice, as limited fora.

C. The “Limited Forum” as a Limited Forum.

In disputing the finding made by the Second Circuit, peti-
tioners contend that the court’s use of the term “limited” to
describe the forum created in New York’s schools was “aber-
rant”. Pet. Br. at 25. In their view, “there is no separate cate-

10 In this respect the United States (Br. at 8-15) errs in contending
that this case is controlled by Widmar v. Vincent, 454 U.S. 263
(1981). Its argument begs the fundamental issue of this case: the
nature of the forum established in New York's schools. In Widmar,
which the United States coniends is indistinguishable from this case,
there was no dispute that the forum involved was “generally open to
the public”. 454 U.S. at 268-69. Having created a “generally open
forum”, id. at 269, the university could not then make exclusions
based on content. On the other hand, as the Second Circuit correctly
held, the facts of this case showed the creation of a forum not “gen-
erally open to the public” but, instead, limited to the purposes set
forth in Education Law § 414. Widmar thus has no application here.

17

gory of ‘limited public forum’ distinct from ‘designated pub-
lic forum’ ”, id. at 26, because the term “limited” is merely a
synonym for the word “designated”. /d. at 24. That argument,
on its face, strains the language, for the two words cannot be
interpreted as having the same meaning.

A more sensible interpretation gives the words their common
meanings: a government may convert an otherwise-closed
property into a forum by designating it to be so. The govern-
ment is not, however, left with the choice between no forum
and a broad, “first-come, first-served” open forum, such as the
dedication of a new park. Instead, it may limit its designation
of the forum based upon the category of speakers who may use
it or, as both petitioners and the United States agree, the sub-
jects that may be discussed there. Pet. Br. at 22-23; United
States Br. at 9-10 and n.8. Otherwise, as Justice Blackmun
observed in writing for the plurality in Lehman v. City of
Shaker Heights, 418 U.S. 298 (1974), “display cases in public
hospitals, libraries, office buildings, military compounds, and
other public facilities immediately would become Hyde Parks
open to every would-be pamphleteer and politician. This the
Constitution does not require.” 418 U.S. at 304."

The Second Circuit has used the term “limited forum” to
+efer to the type of designated forum created when a state des-
ignates public property to be used as a forum only for some
purposes, but not for others. Deeper Life Christian Fellowship,

1! Amici ACLU et al. argue that the Court meant something other
than what it said in suggesting the existence of a limited forum. They
contend that the Court, although it did not in fact limit its reference,
meant to refer only to meetings of public bodies, where persons
attending must “stick to the business at hand”, ACLU Br. at 6, and
that the sole purpose for a limited forum is to allow a government
body to “perform its official functions” by “maintain[ing] control
over its own agenda”. /d. at 14. While that description accurately
describes the facts in City of Madison, Joint School Dist. No. 8 v.
Wisconsin Empl. Relations Comm'n, 429 U.S. 167 (1976), cited by
the ACLU, the description does not accommodate other cases in
which the Court described the limited designation of the forum
involved, where the purpose of the forum was to address nol a gov-
ernment body but other participants in the forum. See, e.g., Cor-
nelius, Perry.

18

852 F.2d at 679-80; Calash v. City of Bridgeport, 788 F.2d 80,
84 (2d Cir. 1986). The Third Circuit has similarly interpreted
the notion of a limited public forum as being “designated for
only limited uses or for a limited class of speakers”. Brody by
Sugzdinis v. Spang, 957 F.2d 1108, 1118 (3d Cir. 1992) (quot-
ing Student Coalition for Peace v. Lower Merion School Dist.
Bd. of School Directors, 776 F.2d 431, 436 (3d Cir. 1985)).

Restrictions of this type do not mean that the forum is
non-public, but show that the government has created a
‘limited public forum’, a subset type of designated public
forum, whose scope is circumscribed either by subject
matter or category of speaker. .

Id., 957 F.2d at 1118. See also Kreimer v. Bureau of Police for
Town of Morristown, 958 F.2d 1242, 1261 (3d Cir. 1992), in
which the Third Circuit adopted the limited-forum analysis of
the Second Circuit in Travis v. Owego-Apalachin School Dist.,
927 F.2d 688 (2d Cir. 1991), discussed at page 19, infra. The
Ninth Circuit has held similarly. Monterey County Democratic
Central Comm. v. United States Postal Serv., 812 F.2d 1194,
1196 (9th Cir. 1987) (only non-profit civic leagues or non-
partisan organizations permitted to conduct voter registra-
tion drives on Postal Service property; partisan voter regis-
tration efforts prohibited).

The term “limited forum” as used by the Second, Third and
Ninth Circuits is therefore neither novel nor “aberrant”.'?

12 Nor is the notion of a “limited” forum “badly circular”, as peti-
tioners (Pet. Br. at 26) and the ACLU (ACLU Br. at 16) contend. The
difficulty with petitioners’ argument is that it assumes the limited
forum is defined by what it does not include, rather than—as the Sec-
ond Circuit properly defined it—what it does include. A limited
forum defined by a “content-based exclusion of speech” would likely
prove circular, for the reasons asserted by petitioners and the ACLU.
But the limited forum established by Education Law § 414 is defined
by what it includes, namely, the categories of use set forth in the
statute itself. Petitioners’ characterization of the Second Circuit's
holding as establishing a “religion-free” forum is, for that reason,
misleading at best. See Pet. Br. at 26. Further, it is logical, and not
at all circular, to conclude that whatever is not included by the statute
is excluded. See, e.g., Andrus v. Glover Constr. Co., 446 U.S. 608,
616-17 (1980) (it is a general principle of statutory construction that

19

Moreover, in suggesting that the Second Circuit has taken an
“aberrant approach” in its forum jurisprudence, Pet. Br. at 25,
petitioners ignore decisions which demonstrate that the Second
Circuit will enforce a right of access for religious use when, in
a particular case, a local school district exceeds the authority
granted by section 414 and creates a forum for it by allowing
other religious uses. That the Second Circuit did not do so in
this case is simply a matter of the facts presented by petition-
ers, not a defect in the court’s analysis.'?

In Travis v. Owego-Apalachin School Dist., 927 F.2d 688 (2d
Cir. 1991), the local school district had permitted a religious
Christmas program, “intended to celebrate the birth of Jesus”,
which consisted of Christian hymns and a Bible reading. 927
F.2d at 693. In the light of that practice, the Second Circuit
held that the local district could not refuse another applicant for
religious use on the ground that its proposal was not autho-
rized.

Permitting a fund-raiser with a religious theme while
excluding one with a different religious theme is not view-
point-neutral as a matter of law, absent a constitutionally
sufficient explanation for the differential treatment.

Id. at 694.

Similarly, in Deeper Life Christian Fellowship, the Second
Circuit upheld a preliminary injunction requiring the city board
of education to allow a church to use the school building for
worship services. The record in that case showed that the
school board had “opened this forum” to the church by per-
mitting other religious organizations to use the facilities, 852
F.2d at 680, and therefore the court of appeals could not say

when a statute enumerates specific things or acts, by implication it
excludes those things or acts not enumerated, in the absence of con-
trary legislative intent).

13. ~=—‘ The district court, after a factual hearing on the preliminary-
injunction motion and after summary-judgment briefing, 770 F.
Supp. at 98, 99 (30a, 3la-32a), specifically rejected petitioners’
argument that their proposed use was an activity “of the sort per-
mitted in the forum”. Pet. Br. at 24. The Second Circuit affirmed that
finding. 959 F.2d at 388 (13a-14a).

20

that the district court had abused its discretion in granting pre-
liininary relief.

These decisions, together with the decision in the present
case, demonstrate that the Second Circuit has properly applied
the precedents of this Court to the facts of each case arising
under New York's statute. To suggest, as petitioners do, that
such a practice is “aberrant” is, in effect, to advocate for the
jurisprudence of “categories” already rejected by this Court.
ISKCON v. Lee, 112 S. Ct. at 2707. Thus, to create a general
category of “public schools”, or even “school facilities made
available for social, civic, or recreational use by outside
groups”, as petitioners urge, would “unjustifiably elide what
may prove to be critical differences” between states and school
systems of which the Court should rightfully take account.'* /d.

The decisions of other circuits upon which petitioners rely
are not inconsistent. In particular, they do not stand for the
broad proposition that “school facilities made available for
social, civic, and recreational use by outside groups are des-
ignated public fora subject to the strict standards governing
public fora”. Pet. Br. at 19-20 n.8. Grace Bible Fellowship, Inc.
v. Maine School Admin. Dist. #5, 941 F.2d 45 (1st Cir. 1991),
involved a local school board policy allowing “any group [to]
use the [school] facilities, as long as they do not seek to prop-
agate Or propound a religious message”. 941 F.2d at 46. The
school district had never refused access to any group other than
religious organizations. /d. at 47.'°

14 See id. at 2724 (Souter, J., concurring in the judgment in No. 91-
339 and dissenting in No. 91-155); United States v. Kokinda, 497
U.S. 720, 727 (1990) (plurality opinion of O'Connor, J.) (implicitly
rejecting the categorical approach by examining whether “([t)he
postal sidewalk at issue. . . [has] the characteristics of public side-
walks traditionally open to expressive activity”). See also Brody by
Sugzdinis v. Spang, 957 F.2d 1108, 1120 (3d Cir. 1992) (“Public
forum analysis is. . . highly fact-dependent”); ACLU Br. at 5-6
(“The question of when a religious group's use of government prop-
erty presents a valid claim of equal access. . . turns on issues of
context that necessarily are fact-specific”).

15 The school district in Grace Bible Fellowship also had granted
access for activities, such as (non-religious) fund-raising (id.), that
would be unauthorized in New York schools under section 414.

21

Gregoire v. Centennial School Dist., 907 F.24 1366 (3d Cir.),
cert. denied, 111 S. Ct. 253 (1990), expressly turned on the
facts of the case, which showed that the school district had
allowed a wide range of uses, including some religious uses but
not others. /d. at 1369, 1373-76. In Brody by Sugzdinis v.
Spang, 957 F.2d 1108, 1119 (3d Cir. 1992), the Third Circuit
clarified its finding that the Gregoire school had been desig-
nated as a public forum, explaining that the school had opened
its auditorium

extensively to various groups including local labor unions
and the Rotary Club, and had even permitted religious
speech in an afternoon student forum, but had only denied
access for an evening event by the particular non-student
religious group.

Id. (emphasis added, citations omitted). It was because the par-
ticular religious group in Gregoire had been “singled out” for
exclusion, Brody, 957 F.2d at 1119, while all others were
granted access, that the Third Circuit found the school to have
demonstrated an intent to designate it a public forum. /d.

The access policies at issue in National Socialist White
People’s Party v. Ringers, 473 F.2d 1010 (4th Cir. 1973), and
in Knights of the Ku Klux Klan, Realm of Louisiana v. East
Baton Rouge Parish School Board, 578 F.2d 1122 (Sth Cir.
1978), also differed from that of New York. In National Social-
ist White People’s Party, “\e)xcept for a few groups which had
previously damaged school property, no group ha/d] been
denied the use of an available auditorium” except the applicant
in that case. 473 F.2d at 1013 (emphasis added). The school
board had granted authority to a “wide variety of public and
private groups on a first-come first-served basis”. /d. Similarly,
in Knights of the KKK, Realm of Louisiana, the state's policy
was an “indifferent one”, id. at 1128, “analogous to dedicating
a public park: it threw open the doors of the gymnasium in
question for after-hours use by all comers, on a first-come,
first-serve basis.” /d.'®

16 The district court decisions on which petitioners rely also fail to
support the broad generalization they advocate (Pet. Br. at 19-20

22

By contrast, New York has never been “indifferent” on the
issue of access, much less “thr[own] open the doors” of its
schools to “all comers” on a “first-come, first-served basis”.
Instead, Education Law § 414 specifies the only uses for which
those doors may be opened, and the commissioner has con-
sistently enforced its limitations.

D. New York’s Limited Forum is Constitutional.

Public property that has been designated as a limited forum
remains a “nonpublic forum” with regard to persons and pur-
poses that are not included in the forum's definition, and the
rules regulating access are the same as those applicable to non-
public fora. Cornelius, 473 U.S. at 802; Perry, 460 U.S. at 48.
Petitioners acknowledge as much. Pet. Br. at 23. Restrictions
that do not limit activities specifically designated for inclusion
in the forum need only be “reasonable and ‘not an effort
to suppress expression merely because public officials oppose
the speaker's view’ ". United States v. Kokinda, 110 S. Ct. at
3121 (quoting Perry, 460 U.S. at 46). The restriction “need not
be the most reasonable or the only reasonable limitation”. Cor-
nelius, 473 U.S. at 808. New York's statute meets both aspects
of the applicable test.

n.8). Knights of the Ku Klux Klan v. Martin Luther King Jr. Wor-
shippers, 735 F. Supp. 745 (M.D. Tenn. 1990), did not involve an
access policy limited to “social, civic, and recreational” purposes, as
petitioners contend, but rather presented a polic, of allowing the
local school to be “ordinarily used for public events of all types”.
735 F. Supp. at 752 (emphasis added). The school district in Wallace
v. Washoe Co. School Dist., 701 F. Supp. 187 (D. Nev. 1988), had
made its facilities “open to the general public”, id. at 189-90; the
court's opinion did not suggest that any aitempt had been made to
limit the authority to do so. And in Country Hills Christian Church
v. Unified School Dist. No. 512, 560 F. Supp. 1207 (D. Kans. 1983),
the school district had opened its facilities to “recognized commu-
nity groups”, the dedication of the buildings to that indiscriminate
purpose made them “virtually the same, in concept, as streets and
parks as far as the First Amendment is concerned”. /d. at 1215.

23

1. New York’s definition of the forum is reasonable

New York has always treated the limited opening of its
school buildings during non-school hours as a means to foster
the general knowledge of the community. In 1913 the Educa-
tion Department had urged wider use of the school buildings
for the “betterment of [the people’s] social and intellectual
standards”, 19/3 Report at 41-42, and it was shortly after that
advice that the predecessor to Education Law § 414 was
enacted. As the Second Circuit found in Deeper Life:

{T]he thrust of the statute is to promote general knowl-
edge, rather than to provide a forum for proselytizing or
indoctrinating the public ina particular group's beliefs.

852 F.2d at 680 (emphasis added). The long and consistent his-
tory of the statute’s application towards that purpose precludes
a claim that it has “no other government purpose than the pro-
vision of a place for expression”. AFL-CIO Br. at 3, 11.
Instead, the forum designated by Education Law § 414(1)(c) is
limited to uses intended or designed to “pertain{ } to the wel-
fare of the community”.

The ten purposes sei forth in Education Law § 414(1) may be
grouped conceptually into two categories which fulfill the
statute ’s purpose. The first covers the type of activities with
which public schools are traditionally associated: education
and activities for children. This category includes

— instruction in any branch of education, learning or the
arts [paragraph 414(1)(a)];

— instruction of mentally-retarded minors in classes pro-
vided by a private organization approved by the com-
missioner of education ({ (1)(g)]:

— recreation, physical training and athletics [{ (1)(h));
— child care [q (1)(i)]; and

— graduation exercises by not-for-profit elementary and
secondary schools, so long as no religious service is per-
formed [{ (1)G)].

24

The second category includes the remaining six uses:
— public-library uses [¢ ((1)(b));

— the “social, civic and recreational meetings and enter-
iainments, and other uses pertaining to the welfare of the
community” at issue here (4 (1)(c)];

— meetings, entertainments and occasions where admis-
sion fees are charged [{ (1)(d)];

— use for polling places, voter registration and non-par-
tisan political meetings [¢ (1)(e)]; and

— civic forums and community centers [¥ (1)(f)}.

Each of those uses supports the distinction recognized by the
Second Circuit in Deeper Life that under New York law “access
to the school property is permitted only where it serves the
interests of the public in general, rather than that of sectarian
groups.” 852 F.2d at 680 (emphasis added). In the service of
that distinction, for example, the statute aliows political meet-
ings, but precludes those meetings from being sponsored by a
political organization unless authorized by the vote of a district
meeting. Education Law § 414(1)(e); Appeal of Gaskin, |
Educ. Dep't Rep. 673 (1961).

The community -service/private-interest distinction in public-
school uses embodied in section 414 is the most fundamentally
reasonable distinction that can be made concerning access
to public properties, and especially public schools, that are not
by tradition opened for public speech. Unlike the community
purposes for which authority is designated in the statuie, reli-
gion is an “individual experience”, Wisconsin v. Yoder, 406
U.S. 205, 243 (1972) (Douglas, J., dissenting in part), that is
“inviolately private”. Everson v. Board of Educ., 330 U.S. 1, 58
(1947) (Rutledge, J., dissenting). Religion “must be a private
matter for the individual”. Lemon v. Kurtzman, 403 U.S. 602,
625 (1971). Religious advocacy, like petitioners’ effort to per-
suade community residents to “instill{ ]" “Christian values” in
their children “from an early age” (JA-86), serves the com-
munity only in the eyes of its adherents and yields a benefit
only to those who already believe.

25

To require New York to extend its limited forum to provide
a pulpit for religious advocacy like that at issue here would
inescapably “interfere in a significant way with the uses to
which the government has as a factual matter dedicated the
property”. ISKCON v. Lee, 112 S. Ct. at 2718 (Kennedy, J.,
concurring in the judgment). See, e.g., Southeastern Promo-
tions, Ltd. v. Conrad, 420 U.S. 546, 571-73 (1975) (Rehnquist,
J., dissenting), suggesting that a city could properly devote its
municipal auditorium to the cultural enrichment of “the whole
family” without thereby being required to provide a forum for
other purposes. See also AFL-CIO Br. at 9. Cf. Widmar, 454
U.S. at 267 n.5 (1981) (“We have not held, for example, that a
campus must make all of its facilities equally available to stu-
dents and nonstudents alike, or that a university must grant free
access to all of its grounds or buildings.”).

Indeed, requiring New York to add religious advocacy to its
school-based forum would convert the state's public schools
from the limited community-service fora which the statute con-
templates into the “functional equivalent of a municipal audi-
torium or hall” which amici ACLU et al. contend they should
be. ACLU Br. at 6. In short, neither law nor fact demands that
New York drastically alter the definition of its after-school fora
in order to accommodate petitioners’ desire for a forum noi
otherwise available to them."’

2. New York’s definition of the forum is viewpoint-
neutral.

Petitioners, supported by the United States, contend that sec-
tion 414 is not viewpoint-neutral and, in particular, that it is

17 ‘There is no suggestion in the record that, absent the use of Cen-
ter Moriches’ school, petitioners were unable to present their film
series. The availability of alternative channels of communication .
supports the conclusion that the limitations on New York's forum are
reasonable. The First Amendment does not demand unrestricted
access to an otherwise—nonpublic forum merely because use of that
forum may be the most efficient means of delivering the speaker's
message. See Cornelius, 473 U.S. at 809; United States Postal Ser-
vice v. Council of Greenburgh Civic Ass' ns, 453 U.S. at 129.

26

“anti-religious”. Pet. Br. 31. See United States Br. at 20. The
argument confuses the concepts of viewpoint neutrality and
content neutrality. As Justice Brennan explained in his dissent
in Perry, viewpoint neutrality refers to particular speakers, not
whole categories of speech. 460 U.S. at 59 (Brennan, J., dis-
senting). It is the principle of content neutrality, not viewpoint
neutrality, that is relevant where restrictions are imposed on
“speech related to an entire subject area”, id., and content neu-
trality is not required where, as in this case, the forum is lim-
ited. See discussion at pages 12-13, 22, supra.

Section 414 does not present an issue of viewpoint dis-
crimination because the unavailability of New York's schools
for religious purposes, among others, is not based on an objec-
tion to the tenets of any particular religious group. Section 414
provides no discretion to grant permits for any religious uses.
Deeper Life Christian Fellowship, Inc. v. Sobol, 948 F.2d 79,
83 (2d Cir. 1991). The restriction of public-school use to the
purposes set forth in Education Law § 414 is therefore “not
aimed at particular parties, groups, or poinis of view", United
States Civil Service Comm'n v. National Ass'n of Letter Car-
riers, 413 U.S. 548, 564 (1973), and was properly regarded as
viewpoint neutral by the court below. See also Young v. Amer-
ican Mini Theatres, Inc., 427 U.S. 50, 70 (1976) (plurality
opinion).

To the extent that petitioners, supported by the United States
(United States Br. at 17-19), contend that section 414 precludes
the “religious” viewpoint of some otherwise-permissible sub-
ject, the question is not presented by this case.'* Petitioners did

18 From the record, it appears that the local school board decided
only that petitioners’ film series was not permissible because of its
conceded religious purpose, without reaching the question of
whether the film series would have satisfied section 414 if it had not
been religious in nature. There is therefore no support for petition-
ers’ suggestion, and the United States’ fundamental assumpti > that
petitioners’ film series was “otherwise permissible” unuc. the
statute. See Pet. Br. at 16.

In any event, under state law it is the applicant who has the burden
of demonstrating that its proposed use meets a criterion of section

27

not seck to present the viewpoint of “religion”; their viewpoint
was limited to, and described by them as, that of “Christian
values” (JA-86) (emphasis added) and the “Christian per-
spective” (JA-91) (emphasis added). The district court found,
and the court of appeals affirmed the finding, that the statute
did not provide for any religious use whatever, 959 F.2d at 386-
87 (10a-11a), and that the local school district had not made a
forum available to any religious perspectives at all. /d. at 388
(14a). Therefore, petitioners’ Christian viewpoint was not dis-
criminated against while the viewpoint of another religion was
permitted. Rather, all religious use, including petitioner's, was
properly not included in the forum. See Widmar, 454 U.S. at
281 (Stevens, J., concurring) (university could not allow “a
group of Republicans or Presbyterians to meet while denying
Democrats or Mormons the same privilege”); City of Madison,
Joint School Dist. No. 8 v. Wisconsin Employment Rel. Comm.,
429 U.S. 167, 175 (1976) (viewpoint discrimination prohibits
granting to “one side of a debatable public question. . . a
monopoly in expressing its views’’).

Furthermore, petitioners’ reliance upon an undifferentiated
“religious” viewpoint threatens to dissolve the important dif-
ference between generalized “content” and individual “view-
point” as those terms have been used by this and other courts.
See e.g., Perry, 460 U.S. at 59 (Brennan, J., dissenting); Mon-
terey Co. Democratic Cent. Comm. v. United States Postal
Serv., 812 F.2d 1194, 1199 (9th Cir. 1987) (rejecting “expan-
sive characterization of the collective position of all partisan
groups as a ‘viewpoint’ "). Any use, even one expressly pro-
hibited, can be presented as somehow a “viewpoint” of some
other, permitted usc. Cf. Appeal of Gaskin (prohibited meeting
with political candidates presented as a form of “civic” use).

414. E.g., Appeal of Smith, 15 Educ. Dep't Rep. 491 (1976); Matter
of Use of the School-house in District No. 4, 5 State Dep't Rep. 618
(Educ. Dep't 1915). Thus, beyond the bare assumption that their pro-
posed use would have met a criterion in section 414, as to which the
record contains no finding, there is no basis for petitioners or amic:
\o argue that petitioners have been excluded from a forum in which
their film series would “otherwise [have been] permissible”. United
States Br. at 17. See Christian Lega! Soc. Br. at 29.

28

For example, meetings of labor union locals are not authorized
by section 414, see Appeal of Brett, but if viewpoint means
nothing more than petitioners urge, a labor union local could
argue that its meetings should be held in the school’s audito-
rium because the activities to be discussed are designed to pro-
vide higher wages, thereby improving workers’ family lives.
Section 414 authorizes only non-school uses, Appeal of Weiss,
but any “school related use” can easily be presented as having
the “purpose” of enhancing a family’s raising of its children.

Petitioners’ argument that religion is merely the viewpoint
by which they would discuss “contemporary family values”
would thus remove all limitations from this limited forum, and
the device would effectively accomplish indirectly what peti-
tioners set Oul to accomplish openly: the abolition of the lim-
ited forum, where decisions about access may be based upon
content. For the reasons already discussed in Part 1.C., supra,
that result is not required by the First Amendment.

To agree with petitioners, that a forum opened for some lim-
ited purposes must also be opened to religious purposes, pre-
sents the state with the stark choice between indiscriminate
access and no access. Faced with that all-or-nothing choice,
governments will likely decline opportunities to create fora in
their property. The Solicitor General, representing the peti-
tioner in Cornelius, recognized the important public benefit put
at risk by indiscriminate access, arguing in that case that:

The decision of the court of appeals [requiring open
access] ultimately would force the President to restructure
the Campaign quite substantially or, alternatively, to abol-
ish the Campaign entirely.

Brief for Petitioner at 16. “The First Amendment does not man-
date a result so at odds with common sense.” /d.

The present circumstance illustrates the point well: If neither
New York nor any of its local school districts has any more
choice than to lock the school-house doors as soon as the last
pupil and teacher have left, or to keep them wide open to “all
comers”, then at least some of those school districts may opt

29

for the former and close the forum altogether. The First
Amendment interest in encouraging the marketplace of ideas,
Widmar, 454 U.S. at 267-68 n.5 (quoting Healy v. James, 408
U.S. 169, 180 (1972)), is not furthered, and no public interest
is served, by that result.

II

SECTION 414 DOES NOT
UNCONSTITUTIONALLY RESTRICT CONTENT

Petitioners contend that, “[e]ven apart from the First Amend-
ment forum doctrine” (Pet. Br. at 31), the “policy in question”
in this action represents unconstitutional content-based cen-
sorship of pure speech. /d. Despite their disclaimer, the argu-
ment is a variation of their forum argument, as petitioners
themselves make clear by their citation to Widmar (Pet. Br. at
34). Further, to the extent that it is addressed to the policy
established by Education Law § 414, it is unfounded.

Petitioners’ argument is premised on their contention that the
“Second Circuit held that a public school district may deny out-
side organizations equal access to the after-school use of its
facilities solely on the basis of the religious content or purpose
of the planned use.” Pet. Br. at 32. Petitioners err, however,
because that is not the issue presented by the New York statute.
Instead, the Second Circuit correctly held that it did not offend
the Constitution for New York to decline to include religion in
the forum it had designated for matters of general community
interest. The state could reasonably, and therefore constitu-
tionally, not extend its limited forum to religious purposes.
Point I, supra.

Additionally, religious speech is but one of the many poten-
tial uses to which New York has not opened its public schools.
See pages 6-7, supra.'® Thus, the statute makes no attempt to

19 The one case cited by petitioners on this point, May v. Evansville-
Vanderburgh School Corp., 787 F.2d 1105 (7th Cir. 1986), did state
in dictum that the “government's interest in interfering with the free

30

“single out and censor” (Pet. Br. at 33) any speech, religious or
not, nor does it have that effect. Instead, the relevant inquiry in
each case is whether the purpose of a proposed use fits any of
the categories for which the schools have been opened. Beyond
those categories, no one is entitled to access for any purpose,
religious or otherwise.”° As petitioners agree, a speaker is not
“automatically free from otherwise lawful regulation simply
because the speaker communicates religious sentiments”. Pet.
Br. at 33 (footnote omitted).*'

market in ideas through discriminatory restrictions on particular
points of view (such as the religious) is slight”. /d. at 1114. However,
the Seventh Circuit affirmed summary judgment for the school dis-
trict, and held that the school district had not created a public forum
for meetings by allowing teachers to discuss labor relations; by host-
ing meetings of the P.T.A., the Boy Scouts, the Girl Scouts, “fine arts
groups” not further defined, and booster clubs; by allowing the
school to be used as a polling place on election day; by permitting a
religious group to use a school for a time after its church burned
down; or by allowing any meetings by teachers except prayer meet-
ings. /d. at 1114-15. Additionally, the Seventh Circuit's holding fur-
ther supports the conclusion that all school districts are not
equivalerit. See discussion at page 20 , supra.

20 Asamatter of New York law, a local board of education has no
authority to put its school building to extracurricular use beyond
those granted it by statute. E.g., Basset v. Fish, 75 N.Y. 303 (1878);
Appeal of Palmiter, 64 State Dep't Rep. 222 (Educ. Dep't 1942). For
that reason, the local school district respondents were in error in stat-
ing to the district court that

[iJn the absence of Section 414 of the [New York] Education Law
. . . the Schoo! District would be obligated to allow access to the
facilities for religious groups on the same basis as any other
groups may be allowed access.

Mem. in Support of Motion for Summary Judgment at 15 (Nov. 15,
1990), as quoted in Pet. Br. at 22. “In the absence of Section 414”,
the school district would be unable to allow any access to the schoo!
building after school hours, becauseit is only in that statute that the
school district finds any authority to do so. Section 414 creates
authority, it does not limit existing authority and does not “exclude”
anyone.

21 Petitioners confuse the identity of the speaker, which is not an
issue under Education Law § 414(1)(c), with the purpose of the pro-
posed use. They contend that Lamb's Chapel was an “otherwise eli-

31

The absence of religious use from the list of authorized pur-
poses therefore neither discriminates against, nor signals a hos-
tility to, religion. Unlike the university policy struck down in
Widmar, or the school policies at issue in the decisions of other
circuits and district courts relied on by petitioners (Brief at 35
n.16)”*, Education Law § 414 does not “single[ } out religion
for direct discriminatory exclusion”. Christian Legal Soc. Br.
at 8. Section 414 does not even refer to religion, much less
expressly prohibit religious use, and petitioners so concede
(Pet. Br. at 9n.5).”°

gible speaker” (Pet. Br. at 31) and, “as an entity, is eligible to use
school facilities for ‘social, civic and recreational meetings’.” /d. at
34 (emphasis in original). The briefs amicus curiae of the National
Jewish Commission on Law and Public Affairs (“COLPA”) (at 7)
and the Christian Legal Society (at 2, 6) raise the same point. How-
ever, there has been no suggestion in this case, by the parties or the
courts below, that the identity of the applicant rather than the nature
of the proposed use has any bearing on the decision of how loca!
school buildings may be used. See Christian Legal Soc. Brief at 4
n.1, conceding that the denial of access here was not based on the
religious identity of the applicant.

Moreover, the New York courts have concluded that only “use” is
relevant. See Lewis v. Board of Education, 157 Misc. 520, 525-26,
285 N.Y.S. 164, 169-70 (Sup. Ct. N.Y. Co. 1935), modified, 247 App.
Div. 106, 286 N.Y.S. 174 (1st Dep't), rearg. and motion denied, 247
App. Div. 873, 288 N.Y.S. 751 (ist Dep't 1936), appeal dismissed,
276 N.Y. 490, 12 N.E.2d 172 (1937):

The manifest vice of the plaintiff's position is that he has con-
fused the racial and religious affiliations of the users of the school
buildings with the purpose for which the buildings are used. The
restrictions relate to the use. . . . It is the use to which the build-
ings are put, and not the identity of the users, that is decisive of
the lawfulness of the use.

Id., 157 Misc. at 525-26, 285 N.Y.S. at 169-70 (emphasis original in
official report).

22 See pages 20 through 22, supra, for discussion of these cases.

23. +The argument made by the ACLU, which goes too far, helps to
make this clear. They contend that New York's schools are “open to
all speech except that which is excluded”. ACLU Br. at 19. To the
contrary, as the language and history of Education Law § 414
demonstrate, New York's schools are open to no speech except that
which is included by the statute. See also Brief of COLPA at 3-4.

32

Nor does section 414 impose a penalty or other sanction
upon petitioners’ desired speech, as in the cases they cite (Pet.
Br. 32-33). Petitioners may freely engage in religious speech
and, even after the local school board's decision, they may
show their film series to anyone who chooses to see it, without
State penalty. They simply have not been provided with the use
of a public school in order to do so.”

SECTION 414 DOES NOT VIOLATE
THE ESTABLISHMENT CLAUSE.

Petitioners assert that by not providing a forum for religion,
Education Law § 414 violates the Establishment Clause. Pet.
Br. at 36-37; Question Presented No. 4. The Second Circuit
found it “difficult to see how this is so”, 959 F.2d at 389
(15a), and rightly concluded that, “[{i]f anything, a claim of a
violation of the Free Exercise Clause would be expected”. /d.
Petitioners make no Free Exercise claim.

Petitioners demonstrate the validity of the Second Circuit's
puzzlement by arguing, with no citation, that the “ultimate pur-
pose” of the Establishment Clause is “the safeguarding of reli-
gious exercise against the power of the state”. Pet. Br. at 37.
The Establishment Clause is implicated here, they argue,
because the case presents a “classic instance of explicit gov-
ernment repression of religion”. /d. If, indeed, that were the
“ultimate purpose”, then the Free Exercise Clause would be
mere surplusage. As this Court explained in Lee v. Weisman,
112 S.Ct. 2649, 2655 (1992) (quoting Lynch v. Donnelly, 465

24 _— Petitioners have not suggested that the public school was the only,
or even the best, venue for their film series. By contrast, in Widmar,
the plaintiff-students claimed to be “stigmatize[d]” because “having
to explain that we meet off campus tends to make other students
think there is something ‘wrong’ with us”. Chess v. Widmar, 635
F.2d 1310, 1317 & n.9 (8th Cir. 1980), aff'd sub nom. Widmar v. Vin-
cent, 454 U.S. 263 (1981). Petitioners here have made no such claim.
See note 18, supra.

33

U.S. 668, 678 (1984)), the fundamental purpose of the Estab-
lishment Clause is to guarantee that government may not
coerce anyone to support or participate in religion or its exer-
cise, Or otherwise act in a way which “ ‘establishes a [state]
religion or religious faith, or tends to do so’ ”. See also Walz v.
Tax Comm'n, 397 U.S. 664, 673 (1970). Plainly, those concerns
are not at stake here, and therefore the analysis required in
Establishment Clause cases is inapplicable.

There is, in any event, no merit to petitioners’ Establishment
Clause claims.

A. The Establishment Clause Does Not Require Equal
Access

Petitioners contend that, after Mergens, the decision to adopt
an equal access policy would not offend the Establishment
Clause. Pet. Br. at 21. Even if true, it still must remain the
choice of the state whether to adopt such a policy at all. The
Establishment Clause does not eliminate that choice. As Justice
White wrote in dissent in Widmar:

The Establishment Clause ... sets limits only on

what the State may do with respect to religious organi-

zations; it does not establish what the State is required to

do. . . . The step from the permissible to the necessary
. . is a long one. :

454 U.S. at 282 (emphasis original). Furthermore, the First
Amendment does not require that every protected speaker be
provided with the chance to speak. E.g., Miami Herald Publ.
Co. v. Tornillo, 418 U.S. 241 (1974). See also Rust v. Sullivan,
111 S. Ct. 1759 (1991). As this Court wrote in Hazelwood, 484
U.S. at 270-71,

The question whether the First Amendment requires a
school to tolerate particular student speech—the question
that we addressed in Tinker [v. Des Moines Indep. Com-
munity School Dist., 393 U.S. 503 (1969)|—is different
from the question whether the First Amendment requires

34

a school affirmatively to promote particular student
speech.

If, as petitioners contend, the Establishment Clause standing
alone required such a policy, then Congress would have had no
need to adopt the Equal Access Act at issue in Mergens.*° Yet,
this Court has already found in Mergens that the Equal Access
Act was intended to “do more than merely validate the status
quo”. 496 U.S. at 239. The language of the statute (“It shall be
unlawful. . .”) creates a right, rather than reflecting an exist-
ing one based in the Constitution. 20 U.S.C. § 4071(a). See
Student Coalition for Peace v. Lower Merion School Dist., 633
F. Supp. 1040, 1043 (E.D. Pa. 1986) (by enacting the Equal
Access Act, Congress afforded students a right “beyond the
constitutional guarantees in the first amendment”).

Petitioners also suggest that the absence of such a policy
reflects a hostility toward religion. Pet. Br. at 36. However, the
statement from Mergens upon which they rely does not support
that conclusion. Although the Court stated that:

if a State refused to let religious groups use facilities open
to others, then it would demonstrate not neutrality but
hostility toward religion,

496 U.S. at 248 (plurality), the sentence was part of the Court's
discussion of Widmar and the finding in that case that the uni-
versity had adopted an open-forum policy. Indeed, in a sen-
tence following petitioners’ quotation, the Court referred to the
finding in Widmar that the university had made its facilities
available to “ ‘[a] broad. . . spectrum of groups'—both non-
religious and religious speakers”. Mergens, 496 U.S. at 248,
(quoting Widmar, 454 U.S. at 274). Accordingly, it is not
merely the absence of a policy of access that evinces hostility,
as petitioners assume, but the exclusion of religion when the
door is open to everyone else. That is not this case.

25 _—s Although Justice Stevens, dissenting in Mergens, suggested that
the Equal Access Act was intended by Congress to “preclude con-
tinued unconstitutional discrimination”, 496 U.S. at 274, his dis-
cussion pertained to the forum issue, not to the Establishment Clause
argument urged by petitioners here.

35

B. Enforcement of the Forum’s Definition Does Not Vio-
late the Establishment Clause

Petitioners also contend that the Establishment Clause will
be violated by local school districts in implementing Education
Law § 414. They believe that the local school district will
“inevitably entangle itself’ with religion by the “mere enforce-
ment” of the policy defining the forum, because someone will
need to determine “which words and activities fall within ‘reli-
gious worship and religious teaching’ ". Pet. Br. at 37 (quoting
Widmar, 454 U.S. at 272 n.11). ,

The issue is not presented in this case because petitioners
conceded in the district court that their proposed school use
was “of a religious nature and | was) for a religious purpose.”
770 F. Supp. at 92 (18a). They have never claimed otherwise.
Indeed, the brochure they submitted to the local school board
describes one of its purposes as advocating that “Christian val-
ues [be] instilled from an early age” (JA-86).

The argument, in any event, lacks merit, and to the extent
that petitioners direct it to the state statute, their fears are
unwarranted. No perfect separation of church from state is pos-
sible, and the First Amendment recognizes that fact. Walz v.
Tax Comm'n, 397 U.S. 664, 669-70 (1970). “The very exis-
tence of the Religion Clauses is an involvement of sorts—one
that seeks to mark boundaries to avoid excessive entangle-
ment.” /d. See also Lemon v. Kurtzman, 403 U.S. 602 (1971).
That standard is not violated by section 414.

The statute does not require the local school district to deter-
mine “which words and activities fall within ‘religious worship
and religious teaching’ ", as petitioners contend, because that
determination is simply not relevant. Instead, the statute asks
an applicant to identify the purpose for the proposed use of a
public school, and under state law it is the applicant's burden
to demonstrate that the proposed use meets one of the criteria
of section 414. See Appeal of Smith, 15 Educ. Dep't Rep. 491

26 _— Petitioners do not allege that the New York statute fails either of
the other prongs of the three-part Lemon test.

36

(1976); Matter of Use of the School-house in District No. 4,5
State Dep't Rep. 618 (Educ. Dep't 1915).

Any entanglement occasioned by asking an outsider why it
proposes to use a public school is not, in light of the circum-
stances, excessive. A state may, without offending the Estab-
lishment Clause, require an organization which applies for a
regulatory exemption, granted by statute to religious organ-
izations, to “prove that [it] is a religious organization” within
the meaning of the statute. Larson v. Valente, 456 U.S. 228, 255
n.30 (1982). If the implementation of Education Law § 414
results in any entanglement with religion, it is no more exces-
sive than that in Larson. See also Walz v. Tax Comm'n (tax
exemption for “properties used solely for religious worship”
does not violate Establishment Clause).

37

CONCLUSION

The judgment of the Court of Appeals for the Second Cir-
cuit, upholding the constitutionality of New York Education
Law § 414, should be affirmed.

Dated: New York, New York
December 29, 1992

Respectfully submitted,

ROBERT ABRAMS

Attorney General of the
State of New York

Respondent Pro Se

120 Broadway

New York, New York 1027]

(212) 416-8638

JERRY BOONE
Solicitor General

LILLIAN Z. COHEN

JEFFREY I. SLONIM*

Assistant Attorneys General
Of counsel

* Counsel of Record

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0280%3A09. Public record. Not legal advice.