NASSAU COUNTY CIVIC ASSOCIATION, INC.
"The government is us, we are the government, you and I." Teddy Roosevelt
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NASSAU COUNTY CIVIC ASSOCIATION, INC. "The government is us, we are the government, you and I." Teddy Roosevelt |
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February 7, 2012
New York and Equal Access
People of faith are unwelcome
In less then one week, over sixty religious groups in the City of New York will be forced out onto the street as the Bloomberg Administration moves to deny religious groups the use of city public schools. The religious groups have rented city schools during the weekends when school is not in session to hold religious services. While Mayor Bloomberg has allowed other groups the use of city schools, he has specifically targeted religious groups based on their view point claiming that holding religious services in schools is a violation of the establishment clause. The City won the argument in Federal court more then a decade ago, however the case was revived in 2001 after the Supreme court issued it's ruling in Good News Club v. Milford Central Schools which found that a private Christian student group could not be excluded from using a public school during non instructional time. In June, a federal appeals court ruled for the city and in December, the U.S. Supreme Court refused to hear the church's appeal in Bronx Household of Faith v. New York City Board of Education.
When Mayor Bloomberg moved to expel the religious groups from using city schools, the New York State Senate stepped in and passed legislation that would allow religious groups equal access for the use of public schools. The legislation is similar to the Federal Equal Access Act passed by Congress in 1984 that allows student religious groups the use of public schools when school is not in session. The Act requires that all secondary schools that receive federal funds and which allow non-curricular student groups to use school facilities must treat all student groups equally without regard to viewpoint. While the federal law includes the use of meeting spaces, school funding and the use of school publication, the New York Senate version only includes the use of meeting spaces. The federal law which was upheld by the U.S. Supreme court 8 to 1 in Westside School District v. Mergens, has worked well to ensure equal access to all students without regard to their viewpoint.
The First amendment to the United States Constitution protects our freedom of speech and religious liberty from restraint by government. When a government facility such as a school, library or a meeting hall is open for public access, the forum cannot discriminate on the basis of viewpoint. If government wants to restrict access by everyone equally, it is legally permissible to limit the way the forum can be used. This is exactly what occurred with Christian student groups which sought to use public schools after hours. Instead of accommodating the Christian student groups, public school systems sought to exclusively ban the Christian student clubs. This hostility required Congressional intervention.
In response to the Senate bill, Assembly Speaker Silver claimed that the Senate bill would "open the schools up to anybody. That would include the Ku Klux Klan". The comment is inconsistent with the proposed legislation and is inflammatory as the religious groups seeking to use the schools would never support legislation that would support the Klan and that includes minorities who have suffered at the hands of the Klan. The Speaker needs to clarify his remarks and needs provide factual evidence of his assertion. More then twenty eight years later, there has been no evidence that the Federal Equal Access Act opened the door to student hate groups in public schools.
Specifically in Hsu v. Roslyn Union Free School Dist. No. 3, 1996, a federal appeals court ruled that a Christian religious club's constitution can require professed Christians to be club officers, however the court specifically stated that the ruling did not open the door to discrimination, "This does not mean, however, that all efforts by a student club to exclude other students are protected by the statute, even if the exclusion is based on a club's desire to realize its expressive purpose. The Equal Access Act is not a set of federal handcuffs fitted to school principals. Schools must have rules to control their students, and rules will always have the effect of suppressing someone's idea for a club. Though the School's effort to apply its nondiscrimination policy rule is trumped by the Equal Access Act, the Act's mandate of equal access can be trumped by the School's responsibility for upholding the Constitution, for protecting the rights of other students, and for maintaining appropriate discipline in the operation of the school."
Reviewing the proposed Senate amendment, the legislation does not alter the requirement that the New York City Board of Education can adopt reasonable regulations to ensure that there be no disruption to normal school operations and that the regulations ensure the safety and security of it's pupils. The legislation still requires that meetings must be open to all members of the public. There is no prohibition against schools charging a fee for the use of the buildings. Now if a school district wants to limit the forum or the use of the buildings to all, they are still free to do so. The amendment includes the word "religious" and includes a definition of religious meetings specifically stating; religious meetings shall include, but not be limited to, meetings, services and worship.
New York City Councilman Fernando Cabrera has indicated that the Assembly has the 75 co-sponsors to pass the measure and stated that there is one person holding up the bill, NY Assembly Speaker Sheldon Silver. The right response would be for the Speaker to expedite his Chamber's bill and reconcile his version with the Senate. New York's faith community are not second class citizens. They have the power to vote and be heard. Hopefully the Speaker and the Assembly are listening.