Religious Use of Public School Buildings
Religious Use of Public School Buildings
Rabbi Avi Shafran
DECEMBER 11, 2000
FOR IMMEDIATE RELEASE
CONTACT: RABBI AVI SHAFRAN
CASE MADE FOR ALLOWING RELIGIOUS USE OF PUBLIC SCHOOL BUILDINGS
While Orthodox Jews would generally never consider sending their children to public schools, they do have occasion from time to time to use the public schools - specifically, the public school buildings, when school is not in session.
Whether it be a yeshiva graduation ceremony, a Pirchei Chanukah rally, a Bais Yaakov production, a special kinus hisorerus, a Shabbos visit from a Chassidishe Rebbe from abroad, a temporary relocation when a shul is unavailable for use because of construction or natural disaster - often the local public school facility is the most convenient (and sometimes the only available) site at which these activities can take place.
But some or all of these usages of public school buildings may now be in jeopardy, as the U.S. Supreme Court prepares to issue a constitutional ruling on the rights of religious groups to use public schools.
At issue in the case is an upstate New York school district's policy barring religious uses of public school premises. The plaintiff, a religious youth club seeking to hold on-site programs for students after school hours, argued that the district policy denying public school access to religious groups violates those groups' constitutional right to freedom of speech. In a 2-1 decision, the New York-based federal appeals court rejected that argument, and upheld the district policy. It is that ruling that is now before the High Court.
Recognizing the possible implications of the case for the Orthodox Jewish community, lawyers for the National Jewish Commission on Law and Public Affairs (COLPA) and Agudath Israel of America have submitted an "amicus curiae" (friend of the court) brief urging reversal of the appeals court ruling. The authors of the brief were the renowned constitutional attorney Nathan Lewin, COLPA attorney Dennis Rapps, and Agudath Israel of America attorneys David Zwiebel, Eytan Kobre and Abba Cohen.
Explaining the community's interest in the case, the brief notes how "the burgeoning of the Orthodox Jewish population over the past several decades has given rise to an increasingly frequent scenario in which school districts are approached with a request for the temporary use of their buildings on Friday evenings and Saturdays by either newly formed congregations that have no permanent home as of yet or established synagogues that are undergoing structural expansions or repairs. In addition, community-wide lectures and symposia of a religiously inspirational or educational nature are prominent features of Orthodox Jewish communal life. In many instances [local public schools] are the only neighborhood-based facilities capable of accommodating the large turnouts these events draw."
The COLPA brief also notes that because Jewish law prohibits travel by car on the Sabbath and holidays, when an Orthodox congregation is temporarily unable to use its synagogue building, its congregants will not be able to attend services unless an alternate facility exists within walking distance. "Hence," the brief notes, "the Orthodox Jewish community has a special stake in ensuring that public school facilities are accessible to religious groups for religious gatherings."
Addressing the legal issue in the case, the COLPA and Agudath Israel attorneys contend that while a school may be selective regarding the types of subjects and speakers to whom it opens its property, such distinctions must have a reasonable basis. An absolute ban on any type of religious usage, the brief argues, is inherently unreasonable, particularly when such usage takes place on evenings and weekends and serves the general community, thus bearing no connection to the school's official function.
Drawing on several Supreme Court precedents, the Orthodox Jewish brief asserts that so long as public facilities are made available for non-religious uses, their use for religious purposes is compatible with the Constitution's requirement of separation of church and state and must therefore be permitted on free speech grounds. The brief also urged the High Court to hold unconstitutional a New York state law governing private use of public schools that New York courts have interpreted as barring such use by religious groups.
The justices are expected to hand down a ruling in the case by the close of the Supreme Court's current term in June.