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Plaintiffs-appellants The Bronx Household of Faith (the "Church"), an evangelical Christian church, and Jack Roberts and Robert Hall, its pastors, appeal from a summary judgment entered in the United States District Court for the Southern District of New York (Preska, J.) in favor of defendants-appellees Community School District No. 10 ("District # 10"), Charles Williams, President of the Board of Education of District # 10, and the Board of Education for the City of New York. The action was brought to challenge the refusal of defendants to permit the use of the gymnasium-auditorium of a District # 10 public school, the Anne Cross Mersereau Middle School ("M.S. 206B"), by the Church for weekly religious worship services. Originally filed in the Supreme Court of the State of New York, Bronx County, the complaint in the action set forth various claims pleaded under the provisions of 42 U.S.C. § 1983 and New York's declaratory judgment statute, N.Y. C.P.L.R. § 3001 (McKinney 1991): violation of the Free Speech, Free Exercise of Religion and Establishment of Religion Clauses of the First Amendment; violation of the Equal Protection Clause of the Fourteenth Amendment; and violation of the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.

District # 10 removed the action to the Southern District, where both sides moved for summary judgment. In granting summary judgment to the defendants, the district court rejected the First Amendment Free Speech claim after first determining that the Board of Education had created a limited public forum; that the restrictions imposed on the use of the forum were reasonably related to matters of legitimate government concern; and that the concern was to "preserv[e] and prioritiz[e] access to the middle school primarily for educational purposes and, secondarily, for nonexclusive public and community activities." The court dismissed the remaining claims without analysis. On appeal, the appellants advanced the same arguments that they advanced before the district court. We affirm the dismissal of the Free Speech claim but disagree with the district court's analysis of "nonexclusive use." We also reject the claims unaddressed by the district court.


127 F.3d 207 (1997)

The BRONX HOUSEHOLD OF FAITH; Jack Roberts; Robert Hall, Plaintiffs-Appellants,


COMMUNITY SCHOOL DISTRICT NO. 10; Charles Williams, in his official capacity as President of the Board of Education for Community School Board District No. 10; The Board of Education of the City of New York, Defendants-Appellees.

No. 1669, Docket 96-9633.

United States Court of Appeals, Second Circuit.

Argued May 30, 1997.

Decided September 15, 1997.

New York Law School location: File #2544, Box #137