There are two interesting First Amendment developments worth brief comment. One involves the ongoing dispute in New York City about implementation of an Education Department ruling that would end the practice of allowing churches to hold religious worship services in public school buildings, rent-free, on Sundays, in which a new restraining order has been issued against the City. The other involves a preliminary injunction issued by a federal district court against a public school district's use of an internet filter that disfavors websites with gay-positive content.
In New York City, litigation has raged for many years over the large and increasing number of churches that hold their regular Sunday services in public school buildings. It seems that NYC public schools make their facilities available for a variety of non-profit uses with no rental charge, and among these have been small churches that lack their own facilities. At some point the school authorities, claiming to fear the possibility that they were violating the Establishment Clause of the First Amendment by allowing these services to be held, adopted a regulation banning the use of school facilities for religious worship services or to be used as houses of worship.
A church that would be expelled under this rule brought suit in the US District Court in Manhattan and won a preliminary injunction from District Judge Preska, based on a freedom of speech and association argument. Judge Preska's preliminary injunction was affirmed by the 2nd Circuit and Judge Preska subsequently granted summary judgment to plaintiffs. Again the City appealed, and this time the Court of Appeals vacated and remanded the case. Yet again, Judge Preska ruled for plaintiffs and granted a permanent injunction, which the City again appealed.
On June 2, 2011, a 2nd Circuit panel, voting 2-1, reversed Judge Preska, finding that the exclusion of "religious worship services" from public school buildings was not prohibited viewpoint discrimination, but rather a content-based exclusion that was justified by the reasonable concern of the school system that permitting use of its facilities for worship serices might violate the Establishment Clause, or at least would be seen by the public as an endorsement of religion (and more specifically the Christian religion, since all such religious worship services being held in schools were Christian services, as school facilities are unavailable for Jewish or Muslim religious worship services on other days of the week). Bronx Household of Faith v. Board of Education, 650 F.3d 30 (2nd Cir. 2011).
The 2nd Circuit's decision was denied en banc review, and the Supreme Court declined to review the case, so the 2nd Circuit entered its mandate and the City undertook to implement the rule, giving notice to the churches that they would have to discontinue holding services. Notice was given many weeks in advance, to give the churches time to seek alternative accommodations.
Claiming that they could not find an affordable alternative in reasonable proximity to the school where they had been holding their services, the Bronx Household of Faith, plaintiff in the original case, went back to court, pointing out that the 2nd Circuit panel had not held on the merits that allowing the religious worship services in schools would actually violate the Establishment Clause, and further that the opinion did not consider the possibility that expelling the churches would violate the Free Exercise Clause! (Press reports also noted the recent Supreme Court decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 132 S.Ct. 694 (Jan. 11, 2012), recognizing a "ministerial exception" under employment discrimination laws that would protect churches from having to comply with those laws in its employment decisions concerning employees who could be deemed "ministers," but it was hard to see how that decision had any relevance to this dispute.)
Judge Preska issued a temporary restraining order yesterday (February 16), blocking the City from implementing its rule, tersely stating that "Plaintiffs have demonstrated irreparable harm and a likelihood of success on the merits of their Free Exercise Clause and Establish Clause claims." The restraining order was to be immediately effective and remain for ten days, with Judge Preska indicating that "a written opinion will follow." [Additional note: On Friday, Feb. 17, the same 2nd Circuit panel that issued the decision last year responded to an emergency appeal by the City. It held that Judge Preska's TRO could only apply against the named plaintiff — none of the other churches have presented evidence of irreparable injury to a court, after all — and that she should file her opinion promptly, so it can be appealed on the merits.]
Meanwhile, publicity generated by the churches led to a political storm in New York and Albany, where legislation was introduced in the State legislature that would override the local school regulation and specifically allow the services to continue. The Republican-controlled Senate was supportive, but Assembly Speaker Sheldon Silver, a Democrat, raised concerns about how broadly the bill was drafted.
Actually, the plaintiffs do have a point when they assert that the 2nd Circuit panel decision did not mention a possible Free Exercise argument, although legal commentators quoted in the press suggested there would be little merit to an argument that expelling the churches from their free sinecures in city schools constituted an impermissible burden on their free exercise of religion. They are not being restrained by the City from holding their services; they just can't hold them in public school buildings. Holding them in public schools not only threatens to signal state support for religion but also constitutes a substantial financial subvention of religious observance through the provision of free space, free heat, free utilities, and janitorial services, not to mention (but I guess I'm mentioning) the value of free space in a city where space is at a premium and expensive to rent from commercial landlords. The City indicated its intention to appeal from Judge Preska's ruling, but the legislature may beat it to the punch, in which case this may then turn into an Establishment Clause case against the State as well as the City.
The other interesting First Amendment dispute involves an internet filter, called URL Blacklist,that is being used by the Camdenton School District in Missouri to block access to certain kinds of websites from computers in the school library. The school maintains that it is employing this filter in order to comply with its obligations under the Children's Internet Protection Act (CIPA), which requires schools to prevent students from being able to access any visual depictions that are obscene, pornographic, or harmful to minors. There are a variety of such filters available and in use by school districts. The distinctive characteristic of URL Blacklist, however, is its bias against gay-affirmative websites.
That is, if a website contains gay-affirmative material (non obscene, not sexual depictions), it is classified under "sexuality" and "gay and lesbian" and the default setting is for it to be blocked unless a specific request for access is made and approved. The process for seeking access is to submit a request, and the process does not assure that requests are anonymous, and it leaves open the requester for monitoring of their future use. The requester has to know about the site they want to access, since it must be specified in the request. If the request is approved, the site is unblocked for that user when they log on using their identifying name and password. On the other hand, sites with anti-gay content tend to be classified as "religious" and the default setting makes them available. Thus a student seeking gay-related content in a general internet search will be able to access the anti-gay sites with ease, but will have to make a specific request for access to any gay-affirmative site that turns up on a search, and wait for their request to be granted, a process taking up to 24 hours.
The ACLU notified the school district that it was using a filter that discriminated in violation of the First Amendment, but the district refused to switch to a non-discriminatory filter and a lawsuit resulted, with the ACLU representing Parents & Friends of Lesbians and Gay Men (PFLAG), Dignity USA, the Matthew Shepard Foundation, and Campus Pride — gay-affirmative organizations whose websites are blocked– as well as a Jane Doe student. On February 15, U.S. District Judge Nanette K. Laughrey entered a preliminary injunction ordering Camdenton to "discontinue, within 30 days, its internet filter system as currently configured, and any new system must not discriminate against websites expressing a positive viewpoint toward LGBT individuals." PFLAG v. Camdenton R-III School District, No. 2:11-cv-04212 (W.D.Mo.). [2012 Westlaw 510877]
Judge Laughrey found that plaintiffs had adequately shown that the URL Blacklist filter was view-point discriminatory to an extent not justified by the requirements of CIPA. Not only that, it seems that it was less effective than non-discriminatory available filters in blocking the kinds of websites that CIPA requires schools to block. According to a study produced in evidence, URL Blacklist almost entirely blocks gay-affirmative websites, almost never blocks anti-gay websites, and allows through a significant proportion of pornographic websites. In light of this evidence, it was difficult for the school district to be able to argue convincingly that using URL Blacklist was necessary to fulfill their CIPA duties.
Chalk up a preliminary victory for the ACLU on this one!