New York City Bar Association Opposes Legislation on Worship in Schools

The New York City Bar Association has issued a report opposing legislation that would prevent school districts, including the New York City Department of Education, from enacting or enforcing policies which prohibit the conduct of worship services in public schools, because the legislation is “overbroad, unnecessary and likely to lead to confusion, litigation and potential Establishment Clause violations.” The policies at issue were recently upheld by the Second Circuit Court of Appeals as reasonable and constitutionally permitted. The legislation was introduced in response to that decision.

While the report makes clear that current policies already permit public schools to make their space available during non-school hours for activities such as religious instruction, religiously-oriented discussion groups, bible study or prayer groups, on the same basis as for secular groups, the proposed bill would take away from the City and other State school districts the ability to exclude worship services from schools. As a result, while purporting to support “maximum access” to public facilities for religious organizations, “the proposal would instead constitute an infringement on the religious liberty of all New Yorkers and would lead school districts into a morass of Establishment Clause problems,” the report states.

The bill’s supporters, according to the report, have focused on the First Amendment’s protection of the “free exercise” of religion, arguing that “the City’s exclusion of worship services from public schools is precisely such a restriction on the ‘free exercise’ of religion.” However, the report continues, “the First Amendment provides that government must also ‘make no law respecting an establishment of religion.’ The Establishment Clause therefore prohibits laws whose purpose is to promote religion, and those whose principal or primary effect is one that advances religion, as the U.S. Supreme Court has held. The prohibition against establishment of religion was intended to protect citizens’ right to practice any religion or not to practice any religion at all; religious freedom and diversity of belief are far more secure when government is prohibited from advancing one religion over others or even favoring religion over atheism or agnosticism. Because the DOE was appropriately concerned about the appearance of government endorsement of religion under the circumstances it was facing, its attendant adoption of its policy prohibiting the use of public schools for religious worship services properly reflected that concern, which is precisely how the Second Circuit saw it.”

The report concludes, “By preventing DOE from precluding worship services in public schools, as constitutionally permitted by the Second Circuit, the Legislature is leading the State into a thicket of Establishment Clause problems. In addition to being unnecessary and overbroad, the Bill strips school districts of the ability to take necessary steps to avoid conveying a ‘message of endorsement’ of religion and, for that reason, the New York City Bar Association respectfully opposes its passage.”

The report may be read here: