New TRO Issued In Bronx Household Case, Keeping Churches In School Buildings

As reported by AP, yesterday a New York federal district court issued a temporary restraining order (full text) against the New York City Board of Education in Bronx Household of Faith v. New York City Board of Education, a suit that most observers had assumed was concluded.  The TRO temporarily bars the Board of Education from enforcing against a small Bronx church Chancellor's Regulation D-180.  That regulation bars public schools from allowing their buildings to be used for religious worship services or otherwise as a house of worship even though the buildings are available to be used outside of normal school hours for programs by community groups. Most observers thought that the validity of the regulation had been definitively upheld when last December the U.S. Supreme Court denied certiorari in this case which has worked its way up and down the courts for 17-years. (See prior posting.)  After the Supreme Court's denial of review of the 2nd Circuit's decision, widely published media reports indicated that scores of churches were being forced to seek out new places to meet, at significant extra cost to the churches. On Feb. 3, plaintiffs in Bronx Household however filed a new motion (full text) in federal district court seeking a preliminary injunction against enforcement of the school board rule, asserting:

While the Second Circuit ruled in June 2011, that the Department’s policy did not violate the Free Speech Clause of the First Amendment, neither this Court nor the Second Circuit have ever analyzed the Department’s policy under the Free Exercise Clause.... Further, that decision also requires new analysis of the Church’s Establishment Clause claim because it excessively entangles the government with religion.

In issuing the 10-day TRO yesterday, Judge Loretta Preska found that plaintiffs had demonstrated irreparable harm and a likelihood of success on the merits of their Free Exercise Clause and Establishment Clause claims. She also said that a written opinion explaining her ruling further would follow.