1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3

4 _______________

5

6 August Term, 2002

7

8 Argued November 4, 2002 Decided June 6, 2003

9 Errata Filed: July 2, 2003)

10

11 Docket No. 02-7781

12

13 _______________

14

15 THE BRONX HOUSEHOLD OF FAITH, ROBERT HALL and JACK ROBERTS,

16

17 Plaintiffs-Appellees,

18

19 v.

20

21 BOARD OF EDUCATION OF THE CITY OF NEW YORK and

22 COMMUNITY SCHOOL DISTRICT NO. 10,

23

24 Defendants-Appellants.

25

26 _______________

27

28 Before:

29 CARDAMONE, MINER, and KATZMANN,

30 Circuit Judges.

31

32 _______________

33

34 Defendants, New York City Board of Education and Community

35 School District No. 10, appeal from a preliminary injunction

36 entered July 3, 2002 in the United States District Court for the

37 Southern District of New York (Preska, J.). The preliminary

38 injunction, granted upon motion of plaintiffs the Bronx Household

39 of Faith, Robert Hall and Jack Roberts, enjoined defendants from

40 enforcing the New York City Board of Education's Standard

41 Operating Procedure § 5.11 so as to deny plaintiffs' application

42 to rent space in a public school operated by the Board of

43 Education for morning meetings that include religious worship or

44 the application of any similarly situated individual or entity.

45

46 Affirmed.

47

48 Judge Miner dissents in a separate opinion.

49

50 _______________

51
1 ____________

2

3 JANE L. GORDON, New York, New York (Edward F.X. Hart, Lisa

4 Grumet, Michael A. Cardozo, Corporation Counsel of the City

5 of New York, New York, of counsel), for Defendants6 Appellants.

7

8 JORDAN W. LORENCE, Scottsdale, Arizona (Benjamin W. Bull,

9 Alliance Defense Fund Law Center, Scottsdale, Arizona; Rena

10 Lindevaldsen, Esanu, Katsky, Korins & Siger, LLP, New York,

11 New York; Joseph P. Infranco, Migliore & Infranco, Commack,

12 New York, of counsel), for Plaintiffs-Appellees.

13

14 _______________

15

16 Jay Worona, New York State School Boards Association, Inc.,

17 Latham, New York (James R. Sandner, Carol Gerstl, United

18 Federation of Teachers, New York, New York, of counsel),

19 filed a joint amicus curiae brief on behalf of the New York

20 State School Boards Association, Inc. (NYSSBA), and The

21 United Federation of Teachers (UFT).

22

23 Jennifer Levin, Washington, D.C. (Ralph F. Boyd, Jr., Assistant

24 Attorney General, David K. Flynn, Eric W. Treene, Civil

25 Rights Division, U.S. Department of Justice, Washington,

26 D.C.; James B. Comey, U.S. Attorney, David J. Kennedy, Neil

27 M. Corwin, Gideon A. Schor, Assistant U.S. Attorneys,

28 Southern District of New York, New York, New York, of

29 counsel), filed a brief for the United States as Amicus

30 Curiae.

31

32 Anthony R. Picarello, Jr., Washington, D.C. (Roman P. Storzer,

33 Derek L. Gaubatz, The Becket Fund for Religious Liberty,

34 Washington, D.C., of counsel), filed a brief for The Becket

35 Fund for Religious Liberty as Amicus Curiae.

36

37 _______________
2

1 CARDAMONE, Circuit Judge:

2 This appeal concerns the proposed use of a public school

3 building for Sunday worship services by an evangelical Christian

4 church. Courts often struggle to reconcile the principle of

5 equal access to government buildings with a competing principle

6 of American public life, that is, the separation of church and

7 state. In the case before us, the district court resolved this

8 tension in favor of allowing religious speech on public property. 

9 Recent Supreme Court precedent requires that we affirm.

10 BACKGROUND

11 A. Prior Legal Proceedings

12 Plaintiff, the Bronx Household of Faith (church), is an

13 evangelical Christian church founded in 1971 and located in the

14 Bronx, New York. Plaintiffs Robert Hall and Jack Roberts are its

15 co-pastors. This litigation represents plaintiffs' second

16 attempt to compel defendants, the Board of Education of the City

17 of New York and Community School District No. 10 (collectively

18 defendants or appellants), to allow plaintiffs to rent space in

19 public school M.S. 206B, Anne Cross Mersereau Middle School

20 (Middle School 206B), for Sunday morning meetings that include,

21 at least in part, activities that may be characterized fairly as

22 religious worship.

23 Plaintiffs' first application to rent space in Middle School

24 206B was rejected by defendants in 1994, resulting in litigation

25 between the present plaintiffs and defendants in the Southern

26 District of New York. In that case, the district court granted
3

1 defendants' motion for summary judgment dismissing plaintiffs'

2 complaint. Bronx Household of Faith v. Cmty. Sch. Dist. No. 10,

3 No. 95 Civ. 5501, 1996 WL 700915 (S.D.N.Y. Dec. 5, 1996). We

4 affirmed, and the Supreme Court denied certiorari. Bronx

5 Household of Faith v. Cmty. Sch. Dist. No. 10, 127 F.3d 207 (2d

6 Cir. 1997), cert. denied, 523 U.S. 1074 (1998) (Bronx Household

7 I).

8 In 2001 plaintiffs again applied for use of space in Middle

9 School 206B and, when their application was denied, brought the

10 present action in the United States District Court for the

11 Southern District of New York (Preska, J.). The plaintiffs'

12 central point before the district court was that the Supreme

13 Court's decision in Good News Club v. Milford Central School, 533

14 U.S. 98 (2001), effectively overruled our holding in Bronx

15 Household I. Plaintiffs contend that, as a result, the Education

16 Board's policy of excluding community groups from renting school

17 premises for purposes of "religious services or religious

18 instruction" -- while allowing most other types of community

19 groups to hold meetings -- violates their First Amendment right

20 to freedom of speech.

21 Agreeing that plaintiffs were substantially likely to

22 prevail on the merits of their claim, Judge Preska granted their

23 motion for a preliminary injunction. Bronx Household of Faith v.

24 Bd. of Educ., 226 F. Supp. 2d 401 (S.D.N.Y. 2002) (Bronx

25 Household II). The preliminary injunction enjoins defendants

26 "from enforcing the New York City Board of Education's Standard
4

1 Operating Procedure § 5.11 so as to deny plaintiffs' application

2 to rent space in a public school operated by the Board of

3 Education for morning meetings that include religious worship or

4 the application of any similarly-situated individual or entity."

5 From the grant of this preliminary injunction, defendants appeal. 

6 The district court and we denied defendants' application for a

7 stay pending appeal.

8 In reviewing the grant of this preliminary injunction, we

9 revisit a dispute that is no stranger to this Court. Although we

10 have reached the merits in this litigation previously, the issues

11 now raised return to us in a different procedural posture,

12 requiring employment of a different standard of review than that

13 used in Bronx Household I. The instant litigation also arises

14 against a backdrop of additional Supreme Court precedent. In

15 Good News Club, a recent school and religion case with facts that

16 parallel in many respects those here, the Supreme Court held that

17 "quintessentially religious" activities could be "characterized

18 properly as the teaching of morals and character development from

19 a particular viewpoint." 533 U.S. at 111. The Supreme Court

20 also reiterated in its Good News Club decision that speech

21 discussing otherwise permissible subjects cannot be excluded from

22 a limited public forum on the ground that the subject is

23 discussed from a religious viewpoint. Id. at 109-10. The

24 defendants in this case, like the defendant in Good News Club,

25 have opened the relevant limited public forum to the teaching of

26 morals and character development. Accordingly, we affirm and
5

1 hold that the district court did not abuse its discretion when it

2 granted plaintiffs' motion for a preliminary injunction.

3 B. Facts

4 On July 6, 2001 plaintiffs wrote to the School District

5 renewing their prior request to rent Middle School 206B, citing

6 the Supreme Court's Good News Club decision as the basis for the

7 renewed request. Plaintiffs sought to meet at the school from

8 10:00 a.m. to 2:00 p.m. each Sunday morning, beginning on

9 September 30, 2001, to engage in "singing," "the teaching of

10 adults and children . . . from the viewpoint of the Bible," and

11 "social interaction among the members of [the] church, in order

12 to promote their welfare and the welfare of the community."

13 Frank Pagliuca, Director of School Facilities and Planning

14 for the School District, responded in writing to the church's

15 request, stating that it appeared to intend to use the school for

16 the same purpose -- i.e., "weekly worship service" -- that the

17 School District had denied in 1994. Mr. Pagliuca's letter

18 reminded plaintiffs that the District's prior denial "was upheld

19 by the Federal Appeals Court," and advised them that if

20 plaintiffs intended different usage than before, they should

21 submit additional information. Plaintiffs state that on August

22 16, 2001 their counsel was informed by Deborah King, Esq., an

23 attorney for the Board of Education, that defendants were denying

24 the church's request for rental space "because the meetings would

25 violate the defendants' policy prohibiting religious services or

26 instruction in the school buildings."
6

1 Although in this second request to rent space in Middle

2 School 206B, the church did not describe its proposed use as

3 "religious service" or "religious instruction" -- likening it

4 instead to other uses permitted under School Board policy -- the

5 School Board correctly perceived that plaintiffs were, in

6 substance, renewing their prior request to conduct activities

7 that included a weekly worship service. Plaintiffs have since

8 offered a fuller description of the activities in which they seek

9 to engage: 

10 The Sunday morning meetings service consists

11 of the singing of Christian hymns and songs,

12 prayer, fellowship with other church members

13 and Biblical preaching and teaching,

14 communion, sharing of testimonies and social

15 fellowship among the church members.

16

17 In our church service, we seek to give

18 honor and praise to our Lord and Savior Jesus

19 Christ in everything that we do. To that end

20 we sing songs and hymns of praise to our

21 Lord. We read the Bible and the pastors

22 teach from it because it tells us about God,

23 what He wants us to do and how we should live

24 our lives. . . . In keeping with ancient

25 tradition, we have a light fellowship meal

26 after the service, which consists basically

27 of coffee, juice and bagels. This gives us

28 opportunity to meet new people, talk to one

29 another, share one another's joys and sorrows

30 so as to be a mutual help and comfort to each

31 other.

32

33 . . .

34

35 The Sunday morning meeting is the

36 indispensable integration point for our

37 church. It provides the theological

38 framework to engage in activities that

39 benefit the welfare of the community. Those

40 who attend the Sunday morning meetings are

41 taught to love their neighbors as themselves,

42 to defend the weak and disenfranchised, and
7

1 to help the poor regardless of their

2 particular beliefs. It is a venue where

3 people can come to talk about their

4 particular problems and needs. Over the

5 years we have helped people with basic needs

6 such as food, clothing, and rent. We have

7 also provided, by means of counseling,

8 friendship and encouragement, help for people

9 to get out of the multi-generational welfare

10 cycle, to lead productive lives, to leave a

11 life of crime and/or drugs to become

12 responsible citizens, and to counsel people

13 whose personal finances are out of control.

14

15 In one recent case we helped an individual

16 who was about to get evicted. . . . It is

17 through the Sunday meeting where we directly

18 or indirectly learn of these situations and

19 where we can converse with the individuals

20 involved in order to monitor the progress of

21 the issue to be resolved.

22

23 In years past, the church meeting was a

24 very important place for Cambodian Refugees

25 to come in order for us to get to know them

26 so that we could help them with food,

27 clothing and to help them get acclimated to

28 American society. Most of them were

29 Buddhists.

30

31 The Sunday morning meetings of the church are open to all members

32 of the public. The church currently conducts its Sunday meetings

33 in a large house or outdoors under a tent or canopy. The church

34 also owns a vacant lot and asserts that it eventually intends to

35 construct its own building.

36 The School District's denial of the church's request to rent

37 school space -- in 1994 and again in 2001 -- was based on the

38 Education Board's Standard Operating Procedures (SOP) Manual that

39 sets forth a hierarchy of permitted uses of school facilities. 

40 According to the SOP Manual, the primary use of school premises

41 must be for programs and activities of the Board of Education. 
8

1 After the Board's programs and activities, school premises may be

2 used for a variety of community activities, including "social,

3 civic and recreational meetings and entertainment, and other uses

4 pertaining to the welfare of the community," as long as these

5 uses are "non-exclusive and open to the general public."

6 Section 5.11 of the SOP Manual -- enumerated as section 5.9

7 at the time of Bronx Household I -- prohibits any "outside

8 organization or group" from conducting "religious services or

9 religious instruction on school premises after school." The same

10 section permits the use of school premises "for the purpose of

11 discussing religious material or material which contains a

12 religious viewpoint or for distributing such material."

13 The School District has over the years permitted a variety

14 of organizations to use school premises for meetings and

15 activities after school hours and on weekends. Examples of

16 organizations that received such permission during the 2000-2001

17 school year include Girl Scouts; the Mosholu Community Center,

18 which organizes sports and other recreational activities;

19 University Heights, which sponsored sports events, holiday shows

20 and activities relating to Black History Month; and Lehman

21 College, which held classes in teaching English as a second

22 language. At the same time, the School District has never

23 granted an application seeking to use school facilities for

24 religious services.
9

1 We pass now to a discussion of the rules governing the

2 issuance of a preliminary injunction in general, and then apply

3 those rules to this case.

4 DISCUSSION

5 I Standard of Review

6 A district court's grant of a preliminary injunction is

7 reviewed for an abuse of discretion. Such an abuse occurs when

8 the district court bases its ruling on an incorrect legal

9 standard or on a clearly erroneous assessment of the facts. See

10 Fun-Damental Too, Ltd. v. Gemmy Indus. Corp., 111 F.3d 993, 999

11 (2d Cir. 1997). "A finding is 'clearly erroneous' when although

12 there is evidence to support it, the reviewing court on the

13 entire evidence is left with the definite and firm conviction

14 that a mistake has been committed." United States v. U.S. Gypsum

15 Co., 333 U.S. 364, 395 (1948). In cases raising First Amendment

16 issues, "an appellate court has an obligation to 'make an

17 independent examination of the whole record' in order to make

18 sure that 'the judgment does not constitute a forbidden intrusion

19 on the field of free expression.'" Bose Corp. v. Consumers Union

20 of United States, Inc., 466 U.S. 485, 499 (1984) (quoting New

21 York Times Co. v. Sullivan, 376 U.S. 254, 284-286 (1964)).

22 To obtain a preliminary injunction a party must demonstrate:

23 (1) that it will be irreparably harmed if an injunction is not

24 granted, and (2) either (a) a likelihood of success on the merits

25 or (b) sufficiently serious questions going to the merits to make

26 them a fair ground for litigation, and a balance of the hardships
10

1 tipping decidedly in its favor. See Forest City Daly Hous., Inc.

2 v. Town of North Hempstead, 175 F.3d 144, 149 (2d Cir. 1999). 

3 Where the requested preliminary injunction would stay government

4 action taken in the public interest pursuant to a statutory or

5 regulatory scheme -- as it does here -- the less rigorous burden

6 of proof standard envisioned by the phrase "fair ground for

7 litigation" does not apply, and instead the party seeking

8 injunctive relief must satisfy the more rigorous prong of

9 "likelihood of success." This higher standard of proof requires

10 judicial deference to those regulations developed through

11 reasoned democratic processes. See id.

12 Moreover, an even higher standard of proof comes into play

13 when the injunction sought will alter rather than maintain the

14 status quo. In such case, the movant must show a "clear" or

15 "substantial" likelihood of success. See Rodriguez ex rel.

16 Rodriguez v. DeBuono, 175 F.3d 227, 233 (2d Cir. 1999) (per

17 curiam). Because the plaintiffs here sought an injunction that

18 commands a positive act that alters the status quo, the district

19 court correctly required that plaintiffs demonstrate a "clear" or

20 "substantial" likelihood of success on the merits.

21 II Irreparable Harm

22 In determining whether there was an abuse of discretion in

23 the grant of injunctive relief, we first address the issue of

24 irreparable harm. In finding irreparable harm, the district

25 court observed that the plaintiffs' claims implicate First

26 Amendment speech rights that are the bedrock of our liberties,
11

1 and concluded that the church will suffer serious damage were an

2 injunction not to issue. Although "[t]he loss of First Amendment

3 freedoms, for even minimal periods of time, unquestionably

4 constitutes irreparable injury," Elrod v. Burns, 427 U.S. 347,

5 373 (1976), we have not consistently presumed irreparable harm in

6 cases involving allegations of the abridgement of First Amendment

7 rights, see Amandola v. Town of Babylon, 251 F.3d 339, 343 (2d

8 Cir. 2001) (per curiam).

9 On the one hand, we have said that since violations of First

10 Amendment rights are presumed to be irreparable, the allegation

11 of a First Amendment violation satisfies the irreparable injury

12 requirement. Tunick v. Safir, 209 F.3d 67, 70 (2d Cir. 2000). 

13 On the other hand, we have suggested that, even when a complaint

14 alleges First Amendment injuries, irreparable harm must still be

15 shown -- rather than simply presumed -- by establishing an actual

16 chilling effect. See Latino Officers Ass'n v. Safir, 170 F.3d

17 167, 171 (2d Cir. 1999).

18 Whatever tension may be said to exist in our case law

19 regarding whether irreparable harm may be presumed with respect

20 to complaints alleging First Amendment violations, we think is

21 more apparent than real. Where a plaintiff alleges injury from a

22 rule or regulation that directly limits speech, the irreparable

23 nature of the harm may be presumed. For example, in Tunick an

24 artist was denied a city permit to conduct a photographic shoot

25 of nude models on a residential street. 209 F.3d at 69. In Bery

26 v. City of New York, 97 F.3d 689 (2d Cir. 1996), groups of visual
12

1 artists opposed enforcement of a city regulation prohibiting them

2 from exhibiting or selling their work in public places without a

3 general vendor's license; under the regulation, only a limited

4 number of the licenses could be in effect at any time. Id. at

5 691-92. In both cases the challenged government action directly

6 limited speech and irreparable harm was presumed. See Tunick,

7 209 F.3d at 70; Bery, 97 F.3d at 693-94.

8 In contrast, in instances where a plaintiff alleges injury

9 from a rule or regulation that may only potentially affect

10 speech, the plaintiff must establish a causal link between the

11 injunction sought and the alleged injury, that is, the plaintiff

12 must demonstrate that the injunction will prevent the feared

13 deprivation of free speech rights. The Supreme Court instructs

14 us on this issue in Laird v. Tatum, 408 U.S. 1 (1972), that to

15 establish a cognizable claim founded on the chilling of First

16 Amendment rights, a party must articulate a "specific present

17 objective harm or a threat of specific future harm." Id. at 14.

18 Thus, in Latino Officers Ass'n, plaintiffs challenged a

19 police department's requirements that all officers notify the

20 department of their intention to speak before a governmental

21 agency or a private organization about department policy, and

22 that they provide an after-the-fact summary of their comments. 

23 170 F.3d at 169, 171. We found the theoretical possibility of a

24 chilling effect on officers' speech too conjectural and

25 insufficient to establish irreparable harm. Id. at 171. In

26 Charette v. Town of Oyster Bay, 159 F.3d 749 (2d Cir. 1998), we
13

1 ruled the record insufficient to decide a topless bar operator's

2 motion to enjoin enforcement of a zoning regulation that resulted

3 in the bar's closing. The record contained no evidence

4 indicating how soon after the issuance of the injunction, if at

5 all, the bar could be reopened. Id. at 750-51, 756-57; see also

6 Am. Postal Workers Union, AFL-CIO v. U.S. Postal Serv., 766 F.2d

7 715, 722 (2d Cir. 1985) (reversing a preliminary injunction

8 enjoining employee's discharge pending arbitration because

9 discharge did not chill First Amendment rights of members of

10 union sufficiently to cause irreparable harm).

11 Here, the alleged deprivation of plaintiffs' First Amendment

12 rights results directly from a policy of the defendant Board of

13 Education that prohibits "religious services or religious

14 instruction" in school facilities. Since it is this policy that

15 led to a denial of the church's request to rent space in Middle

16 School 206B and directly limits plaintiffs' speech, irreparable

17 harm may be presumed. Because the plaintiffs' allegations

18 entitle them to a presumption of irreparable harm, the district

19 court's finding that the plaintiffs have fulfilled this

20 requirement for the issuance of a preliminary injunction cannot

21 be said to be an abuse of discretion.

22 III Likelihood of Success on the Merits

23 Given that plaintiffs have demonstrated irreparable harm, we

24 now reach the more difficult issue of whether the district court

25 properly found that plaintiffs had shown a likelihood of success

26 on the merits. As noted earlier, because they seek an injunction
14

1 that alters rather than preserves the status quo plaintiffs must

2 satisfy a more rigorous standard of proof and demonstrate a clear

3 or substantial likelihood of such success. Rodriguez, 175 F.3d

4 at 233.

5 In determining whether defendants' denial of the plaintiffs'

6 application to rent the school violates plaintiffs' First

7 Amendment rights, we tread familiar ground. Faced with the same

8 parties and identical facts, we reached the merits of this issue

9 in Bronx Household I, upholding the district court's summary

10 judgment ruling in favor of the defendants Board of Education and

11 School District. Plaintiffs now insist that the Supreme Court's

12 decision in Good News Club, in effect, overruled our holding in

13 Bronx Household I. Judge Preska was persuaded to this view and

14 hence ruled plaintiffs had demonstrated a substantial likelihood

15 of success on the merits of the litigation. In order to

16 ascertain whether this holding was an abuse of discretion, we

17 examine our earlier decision in Bronx Household I and the Supreme

18 Court's opinion in Good News Club.

19 A. Bronx Household I

20 In Bronx Household I, we observed that the right to exercise

21 free speech on government property depends on the kind of forum

22 where the speech occurs, noting that the Supreme Court has

23 identified three kinds: the traditional public forum, the

24 designated public forum or "limited public forum," and the

25 nonpublic forum. 127 F.3d at 211 (citing Cornelius v. NAACP

26 Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802 (1985)). 
15

1 Although the church argued that Middle School 206B is an open

2 public forum where the exercise of First Amendment rights cannot

3 be excluded absent a compelling state interest, see 127 F.3d at

4 212, we were not persuaded that the school was "a place that has

5 been devoted to general, unrestricted public assembly by long

6 tradition or by policy or practice," id. at 213. Instead, we

7 reasoned that the Board of Education, by restricting access to

8 certain speakers and subjects, had created a limited public

9 forum. Id. Within such a limited forum, the government may

10 restrict access based on speaker identity and subject matter, but

11 only if "the distinctions drawn are reasonable in light of the

12 purpose served by the forum and are viewpoint neutral." Id. at

13 211-12 (quoting Cornelius, 473 U.S. at 806).

14 Having decided that the school was a limited public forum,

15 we next addressed the question of whether the Education Board's

16 rule prohibiting religious services and instruction is reasonable

17 and viewpoint neutral. We held it reasonable for state

18 legislators and school authorities to avoid identifying a public

19 school with a particular church, when considering the effect of

20 such identification on the minds of school children. Id. at 214. 

21 We also deemed the regulation viewpoint neutral, since it

22 "specifically permits any and all speech from a religious

23 viewpoint." Id. We recognized that religious worship services

24 were barred, but believed a permissible distinction could be

25 drawn between religious worship and other forms of speech from a

26 religious viewpoint. Id. at 215. For those reasons and because
16

1 Middle School 206B was a limited public forum, we affirmed the

2 summary judgment ruling in favor of the defendants.

3 B. Good News Club

4 Subsequent to our decision in Bronx Household I, the Supreme

5 Court decided Good News Club v. Milford Central School. At issue

6 in Good News Club was defendant Milford Central School's

7 community use policy that prohibited the use of school premises

8 "by any individual or organization for religious purposes." 533

9 U.S. at 103. Because of this policy the school refused to allow

10 plaintiff Good News Club, a private Christian organization for

11 children between the ages of six and 12, to use school premises

12 for activities that included praying, singing, reading, and

13 learning the Bible. The school denied plaintiff's request to use

14 its facilities because it thought "the kinds of activities

15 proposed to be engaged in by the Good News Club were not a

16 discussion of secular subjects such as child rearing, development

17 of character and development of morals from a religious

18 perspective, but were in fact the equivalent of religious

19 instruction itself." Id. at 103-04.

20 The Good News Club sued challenging the school's policy on

21 First Amendment grounds. The district court granted the school's

22 motion for summary judgment and we affirmed, reasoning that the

23 exclusion of the Club's "quintessentially religious" activities

24 was constitutional content discrimination, not unconstitutional

25 viewpoint discrimination. Good News Club v. Milford Cent. Sch.,

26 202 F.3d 502, 510-11 (2d Cir. 2000). The Supreme Court granted
17

1 certiorari to resolve the conflict among the circuits "on the

2 question whether speech can be excluded from a limited public

3 forum on the basis of the religious nature of the speech." Good

4 News Club, 533 U.S. at 105. In the context of stating its

5 intention to resolve that conflict, the Court mentioned our

6 opinion in Bronx Household I and noted that it was on the same

7 side of the split as Campbell v. St. Tammany's School Board, 206

8 F.3d 482 (5th Cir. 2000), a decision relying in part on our

9 opinion in Bronx Household I, and one which the Supreme Court

10 subsequently vacated and remanded in light of Good News Club, see

11 Campbell v. St. Tammany's Sch. Bd., 533 U.S. 913 (2001). See

12 Good News Club, 533 U.S. at 105-06.

13 In reversing the judgment of this Court, a divided Supreme

14 Court found that by excluding the meetings of the Good News Club

15 while allowing other types of instruction on moral and ethical

16 issues the school maintained an exclusionary policy that

17 "constitutes viewpoint discrimination." Id. at 107. The

18 majority characterized the Club's proposed activities as teaching

19 morals and character from a religious perspective. It did not

20 think something that is "'quintessentially religious' or

21 'decidedly religious in nature' cannot also be characterized

22 properly as the teaching of morals and character development from

23 a particular viewpoint." Id. at 111. Because the school allowed

24 teachings about morals and character from a variety of other,

25 secular perspectives, the Court continued, the school could not

26 legally exclude the Club's meetings solely because of the
18

1 religious viewpoint it advocated. Id. at 111-12. The Court

2 concluded by stating, "What matters for purposes of the Free

3 Speech Clause is that we can see no logical difference in kind

4 between the invocation of Christianity by the Club and the

5 invocation of teamwork, loyalty, or patriotism by other

6 associations to provide a foundation for their lessons." Id. at

7 111.

8 Significantly, the majority found no meaningful distinction

9 between the case before it and Lamb's Chapel v. Center Moriches

10 Union Free School District, 508 U.S. 384 (1993). Good News Club,

11 533 U.S. at 111-12. In Lamb's Chapel, the Supreme Court held

12 that a school could not prohibit an outside group's demonstration

13 of a film about family values simply because the film addressed

14 the issue from a religious perspective, where the school

15 admittedly would have allowed demonstration of a film addressing

16 family values from a secular perspective. 508 U.S. at 393-94. 

17 The Good News Club majority reasoned that the Club -- like the

18 Lamb's Chapel plaintiffs -- was seeking "to address a subject

19 otherwise permitted [in the school], the teaching of morals and

20 character, from a religious standpoint." The fact that the Good

21 News Club proposed to conduct the teaching through "storytelling

22 and prayer" rather than through film, as in Lamb's Chapel, was an

23 "inconsequential" distinction. 533 U.S. at 109-12.

24 The dissenting members of the Supreme Court -- Justices

25 Stevens, Souter, and Ginsburg -- perceived the speech at issue in

26 Good News Club to be sufficiently different from that in Lamb's
19

1 Chapel to require the opposite result. Justice Stevens drew a

2 distinction between three types of speech for religious purposes: 

3 (1) "religious speech that is simply speech about a particular

4 topic from a religious point of view," such as the film at issue

5 in Lamb's Chapel, (2) "religious speech that amounts to worship,

6 or its equivalent," and (3) an "intermediate category that is

7 aimed principally at proselytizing or inculcating belief in a

8 particular religious faith." The Good News Club's meetings, in

9 his estimation, fell into the third or proselytizing category. 

10 533 U.S. at 130, 133 (Stevens, J., dissenting).

11 Justice Souter was of the opinion that "Good News intends to

12 use the public school premises not for the mere discussion of a

13 subject from a particular, Christian point of view, but for an

14 evangelical service of worship calling children to commit

15 themselves in an act of Christian conversion." Id. at 138

16 (Souter, J., dissenting). He emphasized that the Club's intended

17 activities included elements of worship that made the case as

18 different from Lamb's Chapel "as night from day." Id. at 137. 

19 Justice Souter further observed that the Club's meetings opened

20 and closed with prayer, and that at the heart of each meeting was

21 "the challenge," when the already "saved" children were invited

22 to ask God for strength; and "the invitation," when the teacher

23 would "invite" the "unsaved" children to "receive" Jesus as their

24 "Savior from sin." Id. at 137-38. This dissenting justice

25 criticized the majority's characterization of the Club's
20

1 activities as "teaching of morals and character, from a religious

2 standpoint" as ignoring reality. Id. at 138-39.

3 The Supreme Court majority was not persuaded by the

4 distinction drawn by the dissenters between speech from a

5 religious perspective on the one hand and worship or

6 proselytizing on the other. It did agree with Justice Souter's

7 description of the Club's activities, which we just related, but

8 concluded that those activities "do not constitute mere religious

9 worship, divorced from any teaching of moral values." 533 U.S.

10 at 112 n.4. The majority saw "no reason to treat the Club's use

11 of religion as something other than a viewpoint merely because of

12 any evangelical message it conveys." Notwithstanding Justice

13 Souter's forcefully expressed challenge, it explicitly rejected

14 his characterization of the Club's activities as an "evangelical

15 service of worship," saying that "[r]egardless of the label

16 Justice Souter wishes to use, what matters is the substance of

17 the Club's activities, which we conclude are materially

18 indistinguishable from the activities in Lamb's Chapel and

19 Rosenberger[ v. Rector and Visitors of Univ. of Va., 515 U.S.

20 819, 832 (1995) (holding that a university's refusal to pay a

21 third-party contractor for the printing costs of a student

22 publication, based on the publication's religious editorials, was

23 viewpoint discrimination)]." Id.
21

1 IV Resolution of Instant Appeal

2 A. Free Speech

3 Having laid out for purposes of comparison our holding in

4 Bronx Household I and the Supreme Court's Good News Club opinion,

5 we turn to an analysis of Bronx Household II, the appeal

6 presently before us. We start with the holding of the trial

7 court. In granting plaintiffs' motion for a preliminary

8 injunction it relied on the Supreme Court's holding in Good News

9 Club, believing that the activities proposed by the plaintiff

10 church are similar to those in Good News Club. The trial court

11 also thought that, after Good News Club, religious worship could

12 not be treated as an inherently distinct type of activity, and

13 was instead comparable to other activities involving ritual and

14 ceremony, such as Boy and Girl Scout meetings. Additionally, it

15 viewed the distinction between worship and other types of

16 religious speech as one that cannot meaningfully be drawn by the

17 courts.

18 Based upon our reading of the Supreme Court's decision in

19 Good News Club, we do not think the district court abused its

20 discretion in determining that the plaintiffs were substantially

21 likely to establish that defendants violated their First

22 Amendment free speech rights. Central to our conclusion is a

23 candid acknowledgment of the factual parallels between the

24 activities described in Good News Club and the activities at

25 issue in the present litigation.
22

1 Although the majority in Good News Club characterized the

2 Club's activity as "the teaching of morals and character

3 development from a particular viewpoint," 533 U.S. at 111, this

4 characterization cannot be divorced from Justice Souter's

5 detailed description of the Club's activities that the majority

6 adopted as accurate. Id. at 112 n.4. In Justice Souter's view,

7 the Club's meetings did not consist solely of teaching, but also

8 included elements consistent with "an evangelical service of

9 worship." Id. at 138 (Souter, J., dissenting). The majority did

10 not say that the meetings were somehow distinct from worship

11 services, but simply observed that they were not "mere religious

12 worship, divorced from any teaching of moral values." Id. at 112

13 n.4.

14 We find no principled basis upon which to distinguish the

15 activities set out by the Supreme Court in Good News Club from

16 the activities that the Bronx Household of Faith has proposed for

17 its Sunday meetings at Middle School 206B. Like the Good News

18 Club meetings, the Sunday morning meetings of the church combine

19 preaching and teaching with such "quintessentially religious"

20 elements as prayer, the singing of Christian songs, and

21 communion. The church's Sunday morning meetings also encompass

22 secular elements, for instance, a fellowship meal during which

23 church members may talk about their problems and needs. On these

24 facts, it cannot be said that the meetings of the Bronx Household

25 of Faith constitute only religious worship, separate and apart

26 from any teaching of moral values. 533 U.S. at 112 n.4.
23

1 Because the Board of Education has authorized other groups,

2 like scout groups, to undertake the teaching of morals and

3 character development on school premises, there is a substantial

4 likelihood that plaintiffs would be able to demonstrate that the

5 Board cannot exclude, under Supreme Court precedent, the church

6 from school premises on the ground that the church approaches the

7 same subject from a religious viewpoint. Additionally, the

8 defendants' school building use policy permits social, civic and

9 recreational meetings and entertainments, and other uses

10 pertaining to the welfare of the community, so long as these uses

11 are non-exclusive and open to the public. Therefore, there is a

12 substantial likelihood that plaintiffs would be able to

13 demonstrate that the defendants cannot bar the church's proposed

14 activities without engaging in unconstitutional viewpoint

15 discrimination.

16 We hold the district court did not commit an error of law or

17 fact and therefore did not abuse its discretion by determining

18 that plaintiffs were substantially likely to establish that

19 defendants violated their First Amendment free speech rights. 

20 Our ruling is confined to the district court's finding that the

21 activities plaintiffs have proposed for their Sunday meetings are

22 not simply religious worship, divorced from any teaching of moral

23 values or other activities permitted in the forum.

24 We decline to review the trial court's further

25 determinations that, after Good News Club, religious worship

26 cannot be treated as an inherently distinct type of activity, and
24

1 that the distinction between worship and other types of religious

2 speech cannot meaningfully be drawn by the courts. We recognize

3 that these conclusions are in obvious tension with our previous

4 holding that a permissible distinction may be drawn between

5 religious worship and other forms of speech from a religious

6 viewpoint, Bronx Household I, 127 F.3d at 215, a proposition that

7 was seriously undermined but not explicitly rejected in Good News

8 Club. It is unnecessary for us to reach these issues in order to

9 affirm the trial court's grant of a preliminary injunction in

10 this case.

11 We pause, however, to note some unresolved issues that arise

12 from the recent Supreme Court precedent that, as an appellate

13 court, we are bound to follow. Would we be able to identify a

14 form of religious worship that is divorced from the teaching of

15 moral values? Should we continue to evaluate activities that

16 include religious worship on a case-by-case basis, or should

17 worship no longer be treated as a distinct category of speech? 

18 How does the distinction drawn in our earlier precedent between

19 worship and other forms of speech from a religious viewpoint

20 relate to the dichotomy suggested in Good News Club between

21 "mere" worship on the one hand and worship that is not divorced

22 from the teaching of moral values on the other?

23 Further, how would the state, without imposing its own views

24 on religion, define which values are morally acceptable and which

25 are not? And, if such a choice is impossible to make, would the

26 state be required to permit the use of public school property by
25

1 religious sects that preach ideas commonly viewed as hateful? 

2 When several religious groups seek to use the same property at

3 the same time, would not the state have to choose between them? 

4 What criteria would govern that choice? In all of this process,

5 is there not a danger of excessive entanglement by the state in

6 religion?

7 How the Supreme Court answers these difficult questions will

8 no doubt have profound implications for relations between church

9 and state. The American experiment has flourished largely free

10 of the religious strife that has stricken other societies because

11 church and state have respected each other's autonomy. Religion

12 and government thrive because each, conscious of the corrosive

13 perils of intrusive entanglements, exercises restraint in making

14 claims on the other. The beneficiaries are a diverse populace

15 that enjoys religious liberty in a nation that honors the

16 sanctity of that freedom.

17 B. Establishment Clause

18 We must resolve one final issue, that is, whether it is

19 substantially likely that defendants will not succeed in

20 demonstrating that their denial of plaintiffs' application is

21 necessary to avoid a violation of the Establishment Clause.

22 The First Amendment to the United States Constitution,

23 applicable to the states under the Fourteenth Amendment,

24 prohibits the enactment of any "law respecting an establishment

25 of religion." U.S. Const. amend I. Defendants maintain that,

26 even if their actions infringe on plaintiffs' First Amendment
26

1 rights, the infringement is justified because it is necessary to

2 avoid an appearance of state endorsement of religion and

3 excessive entanglement between state and religion, in violation

4 of the Establishment Clause.

5 In Good News Club, the majority acknowledged that a state's

6 interest in avoiding an Establishment Clause violation "may be

7 characterized as compelling, and therefore may justify content8 based discrimination." 533 U.S. at 112. The Court then noted

9 that, although its precedent did not yet establish whether that

10 interest may also justify viewpoint-based discrimination, it did

11 not need to resolve the issue because the school did not have a

12 valid Establishment Clause interest. Id. at 113. In so ruling,

13 the Supreme Court emphasized that the Good News Club's meetings

14 were held after school hours, were not sponsored by the school,

15 and were open to all students who obtained parental consent. It

16 also noted that the school had made its forum equally available

17 to other organizations. Id.

18 In addition, the Supreme Court rejected the argument that

19 the young age of the children attending the elementary school

20 impermissibly increased the danger of misperception of

21 endorsement, stating that the Court had "never extended [its]

22 Establishment Clause jurisprudence to foreclose private religious

23 conduct during nonschool hours merely because it takes place on

24 school premises where elementary school children may be present." 

25 Id. at 115. The Court emphasized that "even if [it] were to

26 inquire into the minds of schoolchildren in [that] case, [it
27

1 could not] say the danger that children would misperceive the

2 endorsement of religion [was] any greater than the danger that

3 they would perceive a hostility toward the religious viewpoint if

4 the Club were excluded from the public forum." Id. at 118.

5 Relying on the Supreme Court's Good News Club rationale, the

6 district court here concluded that there was a substantial

7 likelihood that the church would be able to demonstrate that the

8 School Board does not have a valid Establishment Clause interest

9 because the proposed meetings: (1) occur on Sunday mornings,

10 during nonschool hours; (2) are not endorsed by the School

11 District; (3) are not attended by any school employee; (4) are

12 open to all members of the public; (5) and there is no evidence

13 that any school children would be on the school premises on

14 Sunday mornings or would attend the meetings. To this list the

15 district court might have added that the church apparently

16 intended to pay rent for the use of the space. The district

17 court believed that by allowing the meetings defendants were more

18 likely to demonstrate neutrality toward religion, and would

19 therefore probably not violate the Establishment Clause.

20 In light of the Supreme Court's refusal to find a valid

21 Establishment Clause interest in Good News Club, and the strong

22 factual similarities between this case and Good News Club, the

23 district court's ruling is adequately supported at this stage of

24 the litigation. The dissent's conclusion to the contrary, in our

25 estimation, misapplies the necessarily deferential standard of

26 review. We hasten to add, however, that this issue is factual
1 For this very reason, the opening sentence of the dissent

severely mischaracterizes the impact of our holding.

28

1 and its resolution in favor of plaintiffs now does not foreclose

2 the possibility that defendants may, with further development of

the record, ultimately prevail on it.1 3

4 C. Res Judicata and Collateral Estoppel

5 As an endnote in our analysis, we hold the district court

6 did not abuse its discretion in concluding that plaintiffs'

7 claims were not barred by the principles of res judicata and

8 collateral estoppel. Although defendants contend that

9 plaintiffs' claims are barred by these doctrines they concede

10 that a change in a controlling legal principle precludes their

11 application. The defendants' argument that no such change has

12 occurred is answered by our discussion.

13 CONCLUSION

14 In sum, in the district court's grant of plaintiffs' motion

15 for a preliminary injunction we find no errors of law or clearly

16 erroneous findings of fact that could be said to constitute an

17 abuse of discretion. The trial court properly found that the

18 plaintiffs' claims are entitled to a presumption of irreparable

19 harm and that, in light of the Supreme Court's opinion in Good

20 News Club, plaintiffs are substantially likely to prevail on the

21 merits.

22 The grant of a preliminary injunction is accordingly

23 affirmed.