NYLJ: Schools Must Allow Religious ‘Expression’ But Can Ban ‘Worship’

Mark Hamblet

New York Law Journal

June 03, 2011

New York City Department of Education rule blocking off-hours use of school facilities for religious worship services complies with the federal Constitution, a divided panel of the U.S. Court of Appeals for the Second Circuit decided yesterday.

Ruling for the fourth time in a decade on a lawsuit brought by a Christian church in the Bronx, the majority concluded that the rule does not constitute viewpoint discrimination under the First Amendment because it “does not exclude expressions of religious points of view or of religious devotion, but excludes for valid non-discriminatory reasons only a type of activity–the conduct of worship services.”

Judges Pierre N. Leval and Guido Calabresi also concluded that the policy was a genuine attempt by the city to avoid violating the Establishment Clause.

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