In a fragmented decision in Bronx Household of Faith v. Board of Education of the City of New York, a 3-judge panel of the U.S. 2nd Circuit Court of Appeals vacated a district judge's permanent injunction barring enforcement of a school policy on rental of space in public school buildings to outside groups on evenings and weekends. (See prior posting.) The New York City schools, concerned about having schools identified with any particular religious group, had prohibited rental of school space to religious groups for worship services. In 2002, the 2nd Circuit had affirmed a preliminary injunction invalidating that policy. (See prior posting.) But now, on appeal of the grant of a permanent injunction in the case, a different 3-judge panel of the court reached a different result. Here is how the court described its fragmented holding:
Judge Calabresi would hold that this dispute is ripe for adjudication and would vacate the injunction because he concludes that Revised SOP §5.11, while a restriction on the content of speech permitted on school property, is viewpoint-neutral. Judge Walker agrees that the dispute is ripe for adjudication but would affirm the injunction because he concludes that Revised SOP § 5.11 is viewpoint-discriminatory. Judge Leval expresses no opinion on the merits, but votes to vacate the injunction because he concludes that the dispute is not ripe for adjudication.Today's New York Sun reports on the case. [Thanks to How Appealing for the lead.]
Our disparate views of this case leave us without a rationale to which a majority of the court agrees. While two judges who disagree on the merits believe the dispute is ripe for adjudication, the court cannot decide the merits of the case without the vote of the third judge, who disagrees as to ripeness. Judge Leval agrees that the dispute over Revised SOP §5.11 would indisputably become ripe if the City were to deny Bronx Household permission to use school facilities in reliance on the terms of that rule.
... The City is free to adopt Revised SOP § 5.11 (if it has not already done so), and then require that Bronx Household apply to use school buildings pursuant to that rule. In the event Bronx Household does so, and the City denies the application, Bronx Household may seek review of that denial in the district court on an expedited basis.