The BRONX HOUSEHOLD OF FAITH, Robert Hall, and Jack Roberts, Plaintiffs-Appellees, v. BOARD OF EDUCATION OF the CITY OF NEW YORK and Community School District No. 10, Defendants-Appellants, 492 F.3d 89

Concurring opinions by Judges CALABRESI and LEVAL, as well as a dissenting opinion by Judge WALKER, follow. PER CURIAM: The Bronx Household of Faith, a Christian church, has applied to use New York City school facilities for Sunday worship services. In 2001, the Board of Education of the City of New York denied Bronx Household’s application, relying on Standard Operating Procedure Manual (SOP) § 5.11, its rule then in effect governing the use of school facilities by outside groups for “social, civic, [or] recreational meetings, ... and other uses pertaining to the welfare of the community.” New York Educ.

L. § 414(1)(c). The District Court for the Southern District of New York (Loretta A. Preska, Judge) first preliminarily enjoined the City’s enforcement of SOP § 5.11, concluding that the City could not exclude Bronx Household. This court affirmed the preliminary injunction.

The district court then entered a permanent injunction barring the City from enforcing a revision of SOP § 5.11. (“Revised SOP § 5.11”). (Judges Walker and Calabresi believe the revision to be the current version of SOP § 5.11, while Judge Leval questions whether the revision has been formally adopted.) We hereby vacate the permanent injunction, although we reach that conclusion in rather circuitous fashion.

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.

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. In vacating the judgment, we remand the action to the district court for all purposes.

We have every reason to believe that both parties hope to bring this protracted litigation to an end by obtaining a decision on the merits. 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. Either party’s appeal from any judgment of the district court will be referred to this panel.

If the parties desire a speedy resolution of their dispute, we believe all this can be accomplished with little delay; indeed, we direct the parties to advise us should they file another appeal and invite the parties, should they wish to, otherwise to apprise us of subsequent developments, in either case by directing a letter to the Clerk of Court. The permanent injunction of the District Court for the Southern District of New York is VACATED. Concurring opinions by Judges Calabresi and Leval, as well as a dissenting opinion by Judge Walker, follow.

CALABRESI, Circuit Judge: Is worship merely the religious analogue of ceremonies, rituals, and instruction, or is worship a unique category of protected expression? I believe the answer to that question determines the result in this case brought under the Free Speech Clause of the First Amendment.

The Bronx Household of Faith (“Bronx Household”), a Christian church, along with its pastors Robert Hall and Jack Roberts, attacked as viewpoint discrimination the refusal of the Board of Education of the City of New York (“the Board”) and Community School District No. 10 (“the School District”) to permit the church to use school facilities for Sunday worship services. The district court (Preska, J.) granted

summary judgment in favor of the plaintiffs and permanently enjoined defendants from enforcing their policy that excludes worship services from school facilities. I vote to vacate the court’s determination that, as a matter of law, defendants’ exclusion of worship services from school facilities is impermissible viewpoint discrimination, and remand the case to the district court for further developments in light of this and the other opinions of this panel filed today. I. Background The relevant facts are not in dispute.

The conflict between 25 these parties began in 1994, when the School District denied plaintiffs’ request to rent space in the Anne Cross Mersereau Middle School (“M.S. 206B”) for Sunday morning meetings. Bronx Household’s weekly meetings would have included the “singing of Christian hymns and songs, prayer, fellowship with other church members and Biblical preaching and teaching, communion, sharing of testimonies” and a “fellowship meal” that allows attendees to talk and provide “mutual help and comfort to” one another. (First Affidavit of Robert Hall at 1).

Under New York State law, local school districts may permit their facilities to be used during after-school hours for a broad range of purposes, including “social, civic and recreational meetings and entertainments, and other uses pertaining to the welfare of the community; but such meetings, entertainment and uses shall be nonexclusive and shall be open to the general public.” N.Y. Education Code § 414(1)(c) (McKinney 2006). The statute authorizes the “trustees or board of education of each district” to allow access to school facilities for any use it chooses within this range of purposes. § 414(1).

District No. 10, a public school district in the Bronx, is subject to the jurisdiction of the New York City Board of Education. In 1994, the School District enforced the Board’s Standard Operating Procedures Manual (SOP) which, at the time, included a provision barring outside organizations from conducting “religious services or religious instruction on school premises after school,” though it allowed groups to “discuss[ ] religious material or material which contains a religious viewpoint.” SOP § 5.9.

Plaintiffs brought an action against defendants to compel the School District to grant a permit for Bronx Household’s weekly use of the school facilities, but the district court granted defendants’ motion for

summary judgment, and dismissed the suit. Bronx Household of Faith v. Community Sch. Dist. No. 10, No. 95 Civ. 5501, 1996 WL 700915 (S.D.N.Y. Dec. 5, 1996). We affirmed. 127 F.3d 207 (2d Cir.1997), cert. denied, 523 U.S. 1074, 118 S.Ct. 1517, 140 L.Ed.2d 670 (1998) [hereinafter Bronx Household I]. We subsequently applied our reasoning from Bronx Household I to another viewpoint discrimination challenge brought against the Milford School District by a private Christian organization for children (the Good News Club).

We held that the Milford district could deny the Good News Club a permit to conduct religious instruction in school facilities because this amounted to “quintessentially religious” activity. Good News Club v. Milford Central Sch., 202 F.3d 502 (2d Cir.2000). The Supreme Court, however, reversed our holding in that case. 533 U.S. 98, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001). The Court found that the Good News Club was seeking “to address a subject otherwise permitted [in the school], the teaching of morals and character, from a religious standpoint.” 533 U.S. at 109, 121 S.Ct. 2093.

The High Court did not dispute the validity of Justice Souter’s description of the Club’s activities as including elements of worship, from the opening and closing of meetings with prayer, to activities such as “the challenge,” where already “saved” children would ask God for strength, and “the invitation,” during which the teacher would “invite” the “unsaved” children to “receive” Jesus as their “Savior from sin.” Id. at 137-38, 121 S.Ct. 2093 (Souter, J„ dissenting).

Nevertheless concluding that the Good News Club’s activities were not “mere religious worship, divorced from any teaching of moral values,” id. at 112 n. 4, 121 S.Ct. 2093, the Court declared: ‘We disagree that something that is ‘quintessentially religious’ or ‘decidedly religious in nature’ cannot also be characterized properly as the teaching of morals and character development from a particular viewpoint,” id. at 111, 121 S.Ct. 2093.

On this basis, and given that other types of moral and character development teaching were permitted “after school,” the Court condemned Milford’s exclusion of the Good News Club as viewpoint discrimination. Id. at 102, 108-109, 121 S.Ct. 2093. It further held that while it is “not clear” whether a state interest in avoiding an Establishment Clause violation could justify viewpoint discrimination, “[w] e need not ... confront the issue in this case, because we conclude the school has no valid 20 Establishment Clause interest.” Id. at 113, 121 S.Ct. 2093.

After the Supreme Court’s decision in Good News Club, Bronx Household in 2001 again applied for and was again denied a permit to use District No. 10’s middle school for weekly Sunday meetings. The grounds of this denial remained the Board’s SOP provision prohibiting any “outside organization or group” from conducting “religious services or religious instruction on school premises after school.” SOP § 5.11(the

section was previously numbered 5.09 in Bronx Household I). Bronx Household brought a new action against the defendants, and this time the district court, following the Supreme Court’s ruling in Good News Club, preliminarily enjoined the School District from denying the permit on the basis of SOP § 5.11 and the religious nature of the church’s weekly meetings. 226 F.Supp.2d 401 (S.D.N.Y.2002).

A divided panel of our court affirmed: “We find no principled basis upon which to distinguish the activities set out by the Supreme Court in Good News Club' from the activities that the Bronx Household of Faith'has proposed for its Sunday meetings at Middle School 206B.” 331 F.3d 342, 354 (2d Cir.2003) [hereinafter Bronx Household II].

In so doing, however, the majority stated that “it cannot be said that the meetings ... constitute only religious worship, separate and apart from any teaching of moral values,” and added: Like the Good News Club meetings, the Sunday morning meetings of the church combine preaching and teaching with such “quintessentially religious” elements as prayer, the singing of songs, and communion. The church’s Sunday morning meetings also encompass secular elements, for instance a fellowship meal during which church members may talk about their problems and needs. Id.

Notably, in Bronx Household II, we specified that “[o]ur ruling is confined to the district court’s finding that the activities plaintiffs have proposed for their Sunday meetings are not simply religious worship, divorced from any teaching of moral values or other activities permitted in the forum.” Id. (emphasis added).

We thus left unresolved the instant appeal’s central question: How does the distinction drawn in our earlier precedent between worship and other forms of speech from a religious viewpoint relate to the dichotomy suggested in Good News Club between “mere” worship on the one hand and worship that is not divorced from the teaching of moral values on the other? Id. at 355.

Moreover, and despite our acknowledgment of an “obvious tension” between our ruling in Bronx Household I and the district court’s application of Good News Club, we specifically “decline[d] to review the trial court’s further determinations that, after Good News Club, religious worship cannot be treated as an inherently distinct type of activity, and that the distinction between worship and other types of religious speech cannot meaningfully be drawn by the courts.” Id. Bronx Household thereafter applied for, and was granted, permission to use P.S. 15 in Bronx, New York, on Sundays from 10:00am to 2:00pm.

Bronx Household has used the school facilities since August 2002, with attendance on a given Sunday morning reaching approximately 85-100 people. The church’s Sunday meeting activities in the school facilities include “singing songs and hymns; teaching from the Bible; sharing testimonies from people in attendance; socializing; eating; engaging-in prayer; and communion.” 400 F.Supp.2d 581, 592 (S.D.N.Y.2005).

Subsequently, while the preliminary injunction was in effect and the church was exercising its permit to use school facilities, the Board of Education announced that it was modifying the enjoined SOP provision. As revised, § 5.11 states: No permit shall be granted for the purpose of holding religious worship services, or otherwise using a school as a house of worship. Permits may be granted to religious clubs for students that are sponsored by outside organizations and otherwise satisfy the requirements of this

chapter on the same basis that they are granted to other clubs for students that are sponsored by outside organizations. (emphasis added). Having altered § 5.11, defendants notified plaintiffs that: Plaintiffs’ use of P.S. 15 for the Bronx Household of Faith’s regular worship services is prohibited under the revised

section 5.11. Defendants are not currently enforcing the revised

section 5.11 ... because of the preliminary injunction Order that was entered in this case. Should defendants prevail in this motion for

summary judgment and the preliminary injunction Order be vacated, then any< future application by plaintiffs to hold their worship services at P.S. 15 or any other school will be denied. 400 F.Supp.2d at 588. In March 2005, the parties cross-moved for

summary judgment. Bronx Household moved to convert the July 2002 preliminary injunction into a permanent injunction, contending the revised SOP § 5.11 is unconstitutional for the same reason the enjoined SOP provision was held to be unconstitutional. The district court granted plaintiffs’ motion for

summary judgment, denied defendants’ cross-motion for

summary judgment, and permanently enjoined the Board from enforcing SOP § 5.11 against appellees. On appeal, defendants argue that: (1) their categorical exclusion of worship services as an after-hours use of school facilities does not constitute viewpoint discrimination; and (2) even if they are found to have discriminated on the basis of viewpoint, such discrimination was justified to avoid violations of the Establishment Clause.

In response, plaintiffs acknowledge that “[f|rom the particular theological perspective of the pastors, ... these activities done at the Sunday morning meeting [are] collectively a ‘worship service.’ ” (Brief of Appellees at 10). But they contend that worship is protected like any other religious speech, and that under Good News Club the state discriminates on the basis of viewpoint when it excludes worship services from school facilities.

Additionally, plaintiffs argue that the state does not possess a sufficiently overriding interest in avoiding an Establishment Clause violation to justify viewpoint discrimination against Bronx Household. II. Discussion In Bronx Household II we expressly reserved judgment on whether worship is simply speech expressing a religious viewpoint on the same subject addressed in a variety of ways in the rituals, ceremonies, and instruction of secular and religious organizations, or whether worship is a unique subject protected as a sui generis category under the Free Speech Clause. Cf.

Bronx Household I, 127 F.3d at 221(Cabranes, J., concurring in part and dissenting in part) (stating that “there is no real secular analogue to religious ‘services’ ”). At that time, we upheld a preliminary injunction against defendants’ regulation barring the use of school facilities for “religious services or religious instruction,” since the latter directly implicated the Supreme Court’s ruling in Good News Club. But now the Board’s modified regulation excludes, only worship services that are not part and parcel of religious instruction.

As a result, I believe that we must consider the relationship, after Good News Club, between worship, simpliciter, and other forms of protected speech, including religious and nonreligious instructional speech and rituals. A. Standard of Review We review de novo the district court’s grant of

summary judgment and construe the evidence in the light most favorable to the non-moving party. See World Trade Center Properties, L.L.C. v. Hartford Fire Ins. Co., 345 F.3d 154, 165-166 (2d Cir.2003); Johnson v. Wing, 178 F.3d 611, 614 (2d Cir.1999).

Summary judgment is appropriate only if there are no genuine issues of material fact such that the party making the motion is “entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Peck v. Public Service Mut. Ins. Co., 326 F.3d 330, 337 (2d Cir.2003). This standard applies equally to cases, like the instant one, in which both parties moved for

summary judgment. See Morales v. Quintel Entertainment, Inc., 249 F.3d 115, 121 (2d Cir.2001). As a result, when parties have filed cross-motions for

summary judgment, the court “must evaluate each party’s motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.” Hotel Employees & Rest. Employees Union, Local 100 v. City of New York Dep’t of Parks & Recreation, 311 F.3d 534, 543 (2d Cir.2002) (quoting Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir.1993)). B. Applicable Level of Constitutional Scrutiny The Constitution does not guarantee unlimited freedom to speak on government property. Cornelius v. NAACP Legal Defense & Educ.

Fund, 473 U.S. 788, 799, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). The scrutiny applied to restrictions of speech on government property varies with' the nature of the forum in which the speech occurs. To guide us, in this respect,' the Supreme Court has defined four categories of “fora for expression ... that, correspondingly, fall along a spectrum of constitutional protection.” Peck v. Baldwinsville Cent. Sch. Dist., 426 F.3d 617, 625 (2d Cir.2005). In traditional public fora—streets, parks, and places that “by long tradition ... have been devoted to assembly and debate,” Perry Educ. Ass’n v.

Perry Local Educators’ Ass’n, 460 U.S. 37, 45-46, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983)—speakers can be excluded only if the exclusion is “necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest.” Cornelius, 473 U.S. at 800, 105 S.Ct. 3439.

We apply the same scrutiny to restrictions in a second category, the “designated public forum.” “[W]hen the government has intentionally designated a place or means of communication as a public forum[,] speakers cannot be excluded without a compelling governmental interest,” id., and this remains so even though the forum is not traditionally open to public assembly and debate. The Court has also recognized a third category, the limited public forum.

A limited public forum is created when the government designates “a place or channel of communication for use by the public at large for assembly and speech, for use by certain speakers, or for the discussion of certain subjects.” Id. at 802, 105 S.Ct. 3439. In the limited public forum, an entire class of speakers or subjects may be excluded according to “reasonable, viewpoint-neutral rules governing the content of speech allowed.” Peck, 426 F.3d at 626. But, once the government “allows expressive activities of a certain genre, it may not selectively deny access for other activities of that genre.” Travis v.

Owego-Apala-chin Sch. Dist., 927 F.2d 688, 692 (2d Cir.1991); see also Rosenberger v. Rector & Visitors of the Univ. of Virginia, 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (“[T]he State must respect the lawful boundaries it has itself set. The state may not exclude speech where its distinction is not reasonable in light of the purpose served by the forum, nor may it discriminate against speech on the basis of its viewpoint”) (internal quotation marks and citations omitted).

Finally, in a nonpublic forum, which has not been opened by tradition or designation to the public for communication, speech may be excluded through any “reasonable” content-based restrictions so long as these do not “suppress expression merely because public officials oppose the speaker’s view.” Perry Educ. Ass’n, 460 U.S. at 46, 103 S.Ct. 948.

In Bronx Household I, we held that defendants’ school facilities constituted a limited public forum and, consequently, that speech could be barred only through restrictions that were viewpoint neutral and reasonably related to the limited purposes of the forum. 127 F.3d at 211-214. Bronx Household II did not revisit this finding. We remain bound by our finding that the school in the case at bar is a limited public forum. There is nothing in the record that requires us to reconsider that holding.

And Good News Club in no way calls our reasoning on this point into question. 533 U.S. at 107, 121 S.Ct. 2093; id. at 136 n. 1, 121 S.Ct. 2093 (Souter, J., dissenting). Since the forum involved in this case is a limited public forum, the question of whether defendants’ exclusion of worship services constitutes content or viewpoint discrimination becomes crucial.

For, as the Supreme Court has stated in Rosen-berger. [I]n determining whether the State is acting to preserve the limits of the forum it has created so that the exclusion of a class of speech is legitimate, we have observed a distinction between, on the one hand, content discrimination, which may be permissible if it preserves the purposes of that limited forum, and, on the other hand, viewpoint discrimination, which is presumed impermissible when directed against speech otherwise within the forum’s limitations. 515 U.S. at 829-30, 115 S.Ct. 2510 (emphasis added).

It is, of course, not always easy to “draw[ ] a precise line of demarcation” between “what amounts to a subject matter unto itself, and what, by contrast, is best characterized as a standpoint from which a subject matter is approached.” Peck, 426 F.3d at 630 (citing Rosenberger, 515 U.S. at 831, 115 S.Ct. 2510). Nevertheless, the distinction is essential to the Court’s balance between a required protection of speech and an essential protection of the government’s ability to define the bounds of a limited forum it chooses to open.

And, as the Court has written unequivocally, the State may be justified “in reserving [its forum] for certain groups or for the discussion of certain topics.” Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510. It follows that we may uphold defendants’ exclusion of worship services from their limited public forum, but that we may only do so if we find that SOP § 5.11 is a “reasonable, viewpoint-neutral rule[ ] governing the content of speech allowed.” Peck, 426 F.3d at 626 (first emphasis added) (citing Hotel Employees & Rest. Employees Union Local 100, 311 F.3d at 545-6); see also New York Magazine v.

Metropolitan Transp. Auth., 136 F.3d 123, 128 (2d Cir.1998). C. Viewpoint Neutrality In the end, I conclude that the barring of worship services from defendants’ school facilities is a content-based restriction and does not constitute viewpoint discrimination. In reaching this conclusion, I first examine how the Court has defined viewpoint discrimination, and then analyze the restriction before us. 1.

Defíning Discrimination on the Basis of Viewpoint In a limited public forum, speech addressing an otherwise permitted subject may not be restricted on the basis of its viewpoint, and this concept applies directly to protect religious approaches to the subject that is being discussed. This core principle of the Supreme Court’s religious discrimination jurisprudence derives from three key decisions: Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993), Rosenberger v.

Rector and Visitors of the University of Virginia, 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995), and Good News Club v. Milford Central School, 533 U.S. 98, 121 S.Ct. 2093, 150 L.Edüd 151 (2001). In Lamb’s Chapel, a unanimous Supreme Court declared unconstitutional the denial of an evangelical church’s request to use school facilities to show a film series addressing child-rearing questions from a Christian perspective.

The Court concluded that “it discriminates on the basis of viewpoint to permit school property to be used for the presentation of all views about family issues and childrearing except those dealing with the subject matter from a religious standpoint.” 508 U.S. at 393, 113 S.Ct. 2141.

The Court emphasizéd that Lamb’s Chapel concerned not just any religious speech, but specifically a religious perspective on the clearly permitted subject of childrearing and family: There is no suggestion ... that a lecture or film about child rearing and family values would not be a use for social or civic purposes otherwise permitted.... That subject matter is not one that the District has placed off limits to any and all speakers. Id.

In Rosenberger, the Court found that the University of Virginia discriminated on the basis of viewpoint by denying funding for a student group that published a newspaper with a Christian editorial viewpoint: By the very terms of the [University fund’s] prohibition, the University does not exclude religion as a subject matter but selects for disfavored treatment those student journalistic efforts with religious editorial viewpoints.

Religion may be a vast area of inquiry, but it also provides, as it did here, a specific premise, a perspective, a standpoint from which a variety of subjects may be discussed and considered. 515 U.S. at 831, 115 S.Ct. 2510. Once again, the Court found it essential that “[t]he prohibited perspective, not the general subject matter, resulted in the [University’s] refusal to make ... payments.” Id.

Finally, in Good News Club the Court affirmed the principle that “speech discussing otherwise permissible subjects cannot be excluded from a limited public forum on the ground that the subject is discussed from a religious viewpoint.” 533 U.S. at 112, 121 S.Ct. 2093. The Good News Club had applied to use the Milford District’s school facilities for meetings that included “singing songs, hearing a Bible lesson and memorizing scripture,” 533 U.S. at 103, 121 S.Ct. 2093, with “the purported purpose ... to instruct children in moral values from a Christian perspective.” 202 F.3d 502, 504 (2d Cir.2000).

The Club characterized itself as a youth organization that aids children’s moral and spiritual development through the use of Bible stories to teach such “values as obedience or resisting jealousy.” Id. at 509. The Club described these and its other activities as follows: The Club opens its session with Ms. Fournier taking attendance. As she calls a child’s name, if the child recites a Bible verse the child receives a treat. After attendance, the Club sings songs. Next[,] Club members engage in games that involve, inter alia, learning Bible verses. Ms.

Fournier then relates a Bible story and explains how it applies to Club members’ lives. The Club closes with prayer. Finally, Ms. Fournier distributes treats and the Bible verses for memorization. Id. at 507. The Club’s materials included a prayer booklet called the “Daily Bread,” which “contained stories that refer to the second coming of Christ, accepting the Lord Jesus as the Savior from sin, and believing in the Resurrection and in the descent of the Lord Jesus from Heaven.” Id.

On this basis, the school district concluded that the Club’s activities were not discussing “secular subjects such as child rearing, development of character and development of morals from a religious perspective, but were in fact the equivalent of religious instruction itself.” Id. The Supreme Court overturned this court’s finding that Milford’s exclusion of the Club was viewpoint neutral.

Likening the Club’s Bible study instruction to the Lamb’s Chapel film series, the Court held: The only apparent difference between the activity of Lamb’s Chapel and the activities of the Good News Club is that the Club chooses to teach moral lessons from a Christian perspective through live storytelling and prayer, whereas Lamb’s Chapel taught lessons through films. This distinction is inconsequential. Both modes of speech use a religious viewpoint. 533 U.S. at 109-10, 121 S.Ct. 2093.

Significantly, the Court held that even if the Club’s activities were “quintessentially religious” or “decidedly religious in nature,” they could still be characterized properly as the teaching of morals and character development: “What matters for purposes of the Free Speech Clause is that we can see no logical difference in kind between the invocation of Christianity by the Club and the invocation of teamwork, loyalty, or patriotism by other associations to provide a foundation for their lessons.” Id. at 111, 121 S.Ct. 2093 (emphasis added). 2. The Category of Worship Services What, then, is worship?

Is it an approach to or a way of considering an otherwise permitted subject of discussion, or is it a unique subject? Defendants argue that, while a film series on childrearing, a student newspaper, and instruction on moral development “no doubt dealt with ... subjects] otherwise permissible,” Lamb’s Chapel, 508 U.S. at 394, 113 S.Ct. 2141, worship is not simply another standpoint on a secular subject. Worship is the sui generis subject “that the District has placed off limits to any and all speakers,” regardless of their perspective. Id. at 393, 113 S.Ct. 2141. I agree.

Indeed, the Good News Club Court itself recognized this subject matter, worship, as falling outside the boundary of its viewpoint discrimination jurisprudence. In finding that the Club’s religious instruction was just one viewpoint among many on moral character and development, the Court emphasized the distinction between this instructional “viewpoint” and the separate category of “mere religious worship, divorced from any teaching of moral values.” 533 U.S. at 112 n. 4, 121 S.Ct. 2093.

And the Court’s majority specified that the Second Circuit had not characterized the Club’s activities as “religious worship.” Id. It was for this reason that—while acknowledging that the Club’s activities would include prayer and be of a “quintessentially religious” nature—the Court found no basis for considering the group’s “use of religion as something other than a viewpoint merely because of any evangelical message it conveys.” Id.

By contrast, the record in the case before us makes clear that Bronx Household’s use of religion was expressly for worship in itself, and not as a form of discussion of or approach to other topics. In applying for a permit to use school facilities, Bronx Household’s pastor described the proposed activities with three words: “Christian worship service.” (EBT Transcript of Robert Hall Jan. 24, 2005).

Despite subsequent changes in plaintiffs’ account of these activities, Pastor Hall repeatedly confirmed that “Christian worship service” is an “accurate description” of that for which Bronx Household requested permission to use school facilities. Id. Specifically, Bronx Household called its meetings a “church service” and enumerated the activities engaged in as including the “singing of Christian hymn and songs, prayer, fellowship with other church members, Biblical preaching and teaching, communion, sharing of testimonies and social fellowship among the church members.” (First Affidavit of Robert Hall).

Plaintiff described these many “component activities that go to make up a worship service,” as follows: In our church service, we seek to give honor and praise to our Lord and Savior Jesus Christ in everything that we do. To that end we sing songs and hymns of praise to our Lord. We read the Bible and the pastors teach from it because it tells us about God, what He wants us to do and how we should live our lives. We celebrate the Lord’s Supper (communion) each Sunday.... (emphasis added).

And Hall expressly characterized his Sunday morning meetings as worship services because “[w]e ascribe worth, our supreme worth, to Jesus Christ.” On appeal to us, however, plaintiffs and their amici argue that the activities in worship services amount only to the expression of a viewpoint on the discussions of social, civic, and community welfare subjects as to which “thousands of permits have been granted [by defendants] to diverse groups, including sports leagues, Legionnaire Greys, Boy and Girl Scouts, community associations, and a college for holding English instruction.” In doing this, plaintiffs challenge, in three ways, the characterization of worship as a unique subject.

First, they claim that the activities composing their worship services are the same as those involved in the religious instruction protected as a viewpoint in Good News Club. Second, plaintiffs argue the church’s worship services “parallel” the ceremonies and rituals conducted by other groups who are granted access to defendants’ schools.

In this respect, they claim their “worship” services stand in the same relationship to these permitted rituals as the moral development lessons taught by the Boy Scouts stood, according to the Good News Club Court, to the lessons in moral development taught from a religious perspective by the Good News Club. Third, plaintiffs contend, based on Supreme Court precedent, that there can be no intelligible content to the distinction between worship and other religious speech. I believe all three arguments are unavailing. (

i) In Good News Club the Court held that the religious instruction under consideration expressed a protected viewpoint on the permitted subjects of instruction, i.e., character and moral development, and only on these.

The Court specifically concluded that Milford had interpreted “its policy to' permit discussions of subjects such as child rearing, and of the ‘development of character and morals.’ ” 533 U.S. at 108, 121 S.Ct. 2093; see also id. (holding that, according its “Community Use Policy” establishing the limited forum, “there is no question that teaching morals and character development to children is a permissible purpose under Milford’s policy”). And the Court’s reasoning confirmed that the boundary of its ruling must be defined by the otherwise permitted subject matter at stake.

See, e.g., 533 U.S. at 111, 121 S.Ct. 2093 (“[W]hen the subject matter is morals and character, it is quixotic to attempt a distinction between religious viewpoints and religious subject matters.”) (quoting 202 F.3d at 512 (Jacobs, J., dissenting) (emphasis added)).

In the case at bar, by contrast, the subject, “worship,” is not a viewpoint on a “subject matter[,] morals and character,” id.; the subject is not a lecture or film about childrearing or family values; and the subject is not a variety of topics for journalistic exploration that the defendants permitted, except when they are undertaken from a religious perspective.

Were we to follow plaintiffs’ construction of Good News Club and consider worship to be just a religious viewpoint on the subject of the welfare of the community, we would, whenever speech implicates religion, eviscerate the Supreme Court’s distinction between viewpoint and the subject matter to which that viewpoint or approach is applied. That is not the meaning of Good News Club, and such a meaning severely misunderstands the nature of worship.

To be sure, some of the same activities that were part of the religious instruction validated in Good News Club are included in the worship services that Bronx Household seeks to conduct. The record confirms that the church’s proposed activities included the singing of Christian hymns and songs along with Biblical preaching and teaching. But the Good News Club Court sanctioned such activities, of a “quintessentially religious nature,” only because they could “also be characterized properly as” the viewpoint from which students were instructed in moral and character development. 533 U.S. at 111, 121 S.Ct. 2093.

The worship services before us today cannot be properly so characterized. For, as Pastor Hall acknowledged, even though the church may “do the same things that a Bible study group does,” significant differences separate the subject of worship services from moral instruction given from a religious viewpoint: “The Bible study club would not administer the sacraments of baptism and the Lord’s supper. That would be a big difference.” (ii) Worship services, moreover, are not in any sense simply the religious analogue of ceremonies and rituals conducted by other associations that are allowed to use school facilities.

Indeed, holding that worship is only an agglomeration of rites would be a judicial finding on the nature of worship that would not only be grievously wrong, but also deeply insulting to persons of faith. As one such person, I find the notion that worship is the same as rituals and instruction to be completely at odds with my fundamental beliefs. Prayer and worship services are not religious viewpoints on the subjects addressed in Boy Scouts rituals or in Elks Club ceremonies. Worship is adoration, not ritual; and any other characterization of it is both profoundly demeaning and false.

Not surprisingly, therefore, Pastor Hall’s own testimony belies plaintiffs’ claim that they seek to conduct only the same viewpoint-expressive activities as those of other groups discussing permitted subjects. . Hall wrote and distributed an

article to church members pointedly distinguishing the church from such other clubs or associations.

Unlike an “Ecclesiastical club” or a “political club,” Pastor Hall explained, “the church [i]s a. covenant community”; the church is “not a group of people who have a common interest in the same way that stamp collecting and coin collecting bring people together.” And Hall explicitly contrasted his group’s meetings with those of the Boy Scouts whose rituals—flag ceremonies, the Pledge of Allegiance, and the Scout Oath—“might be a parallel, but [are] different”: “We engage in the teaching and preaching of the word of God. We administer the sacraments of baptism and the Lord’s supper.

Those would be the differences. We sing hymns. We sing Christian songs. We pray.” One cannot read what Pastor Hall is saying—or for that matter virtually any religious description of worship—sympathetically, without concluding that to worship is not only more than engaging in rituals, but that it is categorically different. In other words, it would be absurd to characterize the Scouts as worshipping the teachings of Lord Baden-Powell, the founder of the Scouts movement, simply because Scout ceremonies and rituals ascribe worth to his message.

What the Scouts are doing and what worshippers do, are categorically different! (iii) Plaintiffs base their final argument— that there is no difference between worship and other forms of religious speech— on the Supreme Court’s ruling in Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981). Widmar held that worship, like all other religious expression, is protected under the Free Speech Clause of the First Amendment. Of course it is.

The Widmar majority rejected the claim of the Justices in “dissent ... that ‘religious worship’ is not generally protected by the ‘free speech’ guarantee,” 454 U.S. at 269 n. 6, 102 S.Ct. 269, and rightly so. But that is not the issue before us. The Widmar Court was concerned solely with whether worship was religious speech, and held that it was. The Court did not consider whether worship was speech of a unique sort, a subject of address that transcended and was different in kind from the subjects whose discussion from a religious viewpoint the Court protected in Good News Club, Rosenberger, and Lamb’s Chapel.

As a result, the Widmar Court certainly did not conclude that the exclusion of worship constituted viewpoint discrimination. It understandably held that a university’s exclusion of “religious worship and religious discussion” from school facilities was impermissible content discrimination in that public forum. 454 U.S. at 265, 269-70, 102 S.Ct. 269. Consequently, plaintiffs’ invocation of Widmar to show that worship cannot be a separate subject of speech is unavailing. 3. Must Worship be Religious? The bulk of this opinion has been written on the premise that worship is always a religious matter.

But I am not sure there cannot be secular as well as religious worship. When people speak of “worshipping” mammon, sex, or art, are they simply speaking metaphorically, or are they expressing a relationship of adoration that is the secular equivalent of religious worship and is of a different order from participating in ritual or ceremony? While the answer to that question seems to me to.be anything but clear, in the end a resolution does not matter for this decision.

If we treat worship as being solely religious, then the first provision in the Board’s regulation—barring use of the school for “religious worship services”—is a trivial redundancy that does not affect worship’s status as sui generis. If, instead, we treat worship as something that can also be secular, then the Board’s exclusion of religious (as against secular) worship is clearly invalid. See Good News Club, 533 U.S. 98, 121 S.Ct. 2093. But the second part of the Board’s regulation, which bars use of the school “as a house of worship,” nevertheless remains in force.

For it excludes religious and secular worship alike. Assuming arguendo, therefore, that secular worship exists, that provision does not distinguish between religious and secular approaches, but instead bars the whole category. Accordingly, it constitutes content rather than viewpoint discrimination. The record is undisputed that plaintiffs wish to use the school facilities as a house of worship. It follows that, if content discrimination is permitted, then Bronx Household can be excluded. D.

Reasonableness of Content Discrimination Content discrimination, even in a limited public forum, must be reasonable in light of the purposes of the forum to be constitutionally permitted. Perry Educ. Ass’n, 460 U.S. at 49, 103 S.Ct. 948. Given our prior holdings, the Board’s exclusion of worship services from school facilities meets this requirement. In Bronx Household I, this court stated: We think that it is reasonable in this case for a state and a school district to adopt legislation and regulations denying a church permission to use school premises for regular religious worship.

We think that it is reasonable for state legislators and school authorities to avoid the identification of a middle school with a particular church. We think that it is reasonable for these authorities to consider the effect upon the minds of middle school children of designating their school as a church. And we think that it is a proper state function to decide the extent to which church and school should be separated in the context of the use of school premises for regular church services.

Education, after all, is a particularly important state function, and the use of school premises is properly a matter of particular state concern. Finally, it is certainly not unreasonable to assume that church services can be undertaken in some place of public assembly other than a public middle school in New York City. 127 F.3d at 214. We construed the purposes of the “school” limited public forum in the same way in Deeper Life Christian Fellowship v. Board of Education of the City of New York, 852 F.2d 676, 680 (2d Cir.1988); see also Deeper Life Christian Fellowship v.

Sobol [Deeper Life II], 948 F.2d 79, 83 (2d Cir.1991) (“We follow our prior opinion in Deeper Life I in holding that under § 414, ‘access to the school property is permitted only where it serves the interests of the public in general, rather than that of sectarian groups.... ’ ”).

Similarly, we rejected the claim of the Good News Club that its exclusion—even if it constituted only content discrimination—would be unreasonable because “there is little risk that children would confuse the Club’s use of school facilities with the school’s endorsement of the religious teachings.” We wrote: This argument is foreclosed by precedent.

In Bronx Household of Faith, we stated that “it is a proper state function to decide the extent to which church and school should be separated in the context of the use of school premises.” Furthermore, “it is reasonable for state legislators and school authorities to avoid the identification of a ... school with a particular church.” 202 F.3d at 509 (quoting Bronx Household I, 127 F.3d at 214) (internal citation omitted).

Although the Supreme Court reversed our holding that Milford’s restriction was viewpoint neutral, the Court did not address our conclusion that were the restriction only content-based, it would be reasonable in light of the purposes of the limited school forum. Accordingly, we remain bound by our finding in Bronx Household I that the content-based restriction in SOP § 5.11 is reasonable. III. Conclusion I would hold that defendants’ exclusion of worship services is viewpoint neutral.

Further, seen only as a content-based restriction, I would find that the exclusion is reasonable in light of the purposes of the limited public forum involved. Given the positions taken by the other members of this panel, however, my disposition is limited to holding that the district court’s permanent injunction and grant of

summary judgment are VaCated, and the case is Remanded for further developments. LEVAL, Circuit Judge: This appeal is brought by the defendants, the Board of Education of the City of New York (“the Board”) and Community School District No. 10 (“the School District”) (collectively, “the City” or “the City defendants”), from a permanent injunction entered by the District Court for the Southern District of New York (Preska, /.).

The injunction bars the City from enforcing a newly proposed Standard Operating Procedure § 5.11(“Proposed SOP § 5.11”) so as to exclude the plaintiff, Bronx Household of Faith (“Bronx Household”), from using a City-owned school building for Sunday church services. Proposed SOP § 5.11 would prohibit the use of New York City public schools for “religious worship services” or as a “house of worship.” The district court, relying on the Supreme Court’s ruling in Good News Club v.

Milford Central School, 533 U.S. 98, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001), found that the City’s enforcement of Proposed SOP § 5.11 to deny Bronx Household permission to use school facilities for its services would violate the First Amendment. In ruling on the City defendants’ appeal from the judgment, our court divides three ways. Judge Walker would affirm, finding that the district court was correct in enjoining enforcement of Proposed SOP § 5.11. Judge Calabresi would vacate the judgment, finding it to be in error.

I would also vacate the judgment but for a different reason, expressing no opinion whether the judgirient was based on a correct or incorrect perception of the substantive standards of the First Amendment. In my view, the judgment should be vacated because there was no ripe dispute between the parties involving the constitutionality of Proposed SOP § 5.11 which the court could appropriately adjudicate. At the time of the district court’s judgment, Bronx Household was suffering no harm by reason of the City’s proposed adoption of the new SOP.

The proposed rule had never been invoked by the City as a basis for denying Bronx Household access to school facilities. Indeed it had.not even been adopted, but was only a proposed rule that had been provisionally approved by City officials. Rather, a former version of SOP § 5.11 (“Old SOP § 5.11”) had been invoked to exclude Bronx Household from using school facilities. Litigation over the exclusion under Old SOP § 5.11 had resulted in a preliminary injunction prohibiting enforcement of that provision to exclude Bronx Household.

Subsequently, in asking the district court to make its final adjudication on the basis of the new proposed SOP, rather than with regard to the SOP which had been invoked in denying Bronx Household’s application, the City asserted that, if the ‘preliminary injunction against it were lifted and it were granted

summary judgment (effectively allowing the City to exclude Bronx Household under the old standard), the City would then invoke Proposed SOP § 5.11 to deny Bronx Household’s future applications. Given the contingent nature of the City’s stated intentions, Proposed SOP § 5.11 may never be enforced against Bronx Household. Indeed, it may never be adopted. There was no present controversy between the parties involving application of the new standard. The question whether the City might constitutionally exclude Bronx Household in reliance on Proposed SOP § 5.11 was speculative and hypothetical.

In fact,. notwithstanding the City’s prediction of how it would rule on an application which had never been made, there is sufficient difference between the new standard and the old rule upon which the City previously denied Bronx Household’s application as to leave substantial uncertainty as to how such an application might play out.

Especially in view of the undesirability of rushing into unnecessary constitutional adjudications, the sensitive constitutional question of whether Proposed SOP § 5.11 violates the' First Amendment would be better adjudicated by a court after the rule has been adopted and ah administrative proceeding has explicitly confronted and ruled on its applicability to the activities of Bronx Household. No party would suffer any meaningful harm if the court deferred adjudication until such time.

In my view, the question whether the City could, consistent with the First Amendment, exclude Bronx Household from using school property under authority of Proposed SOP § 5.11 was therefore unripe for adjudication. Accordingly, I vote to vacate the judgment. See National Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003) (“[T] he question of ripeness may be considered on a court’s own motion.”).

BACKGROUND New York Education Law § 414 authorizes local school boards to permit the use of school facilities by outside groups for, among other activities, “social, civic and recreational meetings and entertainments, and other- uses pertaining to the welfare of the community,” as long as such meetings aré “non-exclusive” and “open to the general public.” New York Educ. L. § 414(1)(c). Pursuant to this law, the Board of Education promulgated a written policy permitting the use of school facilities by outside groups for these “social, civic and recreational” meetings. Standard Operating Procedure § 5.6.2.

The written policy also included Standard Operating Procedure (“SOP”) § 5.9, which prohibited the use of school property for “religious services or religious instruction on school premises after school.” Bronx Household of Faith v. Community School District No. 10, 127 F.3d 207, 210 (2d Cir.1997) (“Bronx Household I”). Bronx Household describes itself as an “urban church whose primary purpose is to bring the Gospel of Jesus Christ to the streets of New York.” See The Bronx Household of Faith, http://www.bhof.org/ bhofl.html (last visited June 22, 2007).

The current dispute between Bronx Household and the City began in 1994, when Bronx Household applied to use space in a middle school located in Community School District Number 10 for its Sunday morning meetings. Bronx Household I, 127 F.3d at 211; Bronx Household of Faith v. Board of Education, 331 F.3d 342, 345 (2d Cir.2003) (“Bronx Household II”). Concluding that the activities der scribed in Bronx Household’s application would constitute “religious services or religious instruction” and would therefore violate § SOP 5.9, the City denied Bronx Household’s application. Bronx Household I, 127 F.3d at 211.

Bronx Household brought suit to challenge the denial. The district court found no First Amendment violation and thus granted

summary judgment in favor of the Board and School District. Bronx Household of Faith v. Community School Dist. No. 10, No. 95 Civ. 5501, 1996 WL 700915, at *6 (S.D.N.Y. Dec.5, 1996). On appeal, we affirmed the judgment. Bronx Household I, 127 F.3d at 217. We found that the Board and School District had created a limited public forum by opening school facilities only to certain types of speakers and subjects,- and that the exclusion of religious services and religious instruction was viewpoint neutral and reasonable in light of the purposes served by the forum.

Id. at 211-15; see also id. at 215 (“[R]eli-gious worship services may well be considered -the ultimate in speech from a religious viewpoint in an open forum. But the question is whether a distinction can be drawn between it and other forms of speech from a religious viewpoint that District # 10 has elected to allow in the limited forum of a public middle school. We think it can.”). The Supreme Court denied certiorari, Bronx Household of Faith v. Board of Education, 523 U.S. 1074, 118 S.Ct. 1517, 140 L.Ed.2d 670 (1998), and the dispute then lay dormant for some years.

It was resurrected in 2001, after the Supreme Court issued its decision in Good News Club, which was arguably incompatible with our decision in Bronx Household I. In Good News Club, the Supreme Court ruled that it was unconstitutional for another school district in the State of New York to exclude from its facilities a “private Christian organization for children ages 6 to 12” which had requested permission to use the school during afterschool hours to sing songs, read Bible lessons, memorize scripture, and pray. 533 U.S. at 103, 121 S.Ct. 2093.

Milford Central School had enacted a “community use policy” similar to the City’s Standard Operating Procedures, whereby school facilities could be used for “social, civic and recreational meetings and entertainment events, and other uses pertaining to the welfare of the community, provided that such uses shall be nonexclusive and shall be opened to the general public,” but could not be used “by any individual or organization for religious purposes,” which school district officials interpreted as prohibiting “religious worship” or “religious instruction.” Id. at 103-04, 121 S.Ct. 2093 (quotation marks omitted).

Noting that “any group that ‘promote[s] the moral and character development of children’ is eligible [under Milford’s policies] to use the school building,” and that “the [Good News] Club teaches morals and character development to children,” albeit from “a religious standpoint,” the Court concluded that exclusion of the Good News Club from school facilities was unconstitutional viewpoint discrimination, id. at 108-10, 121 S.Ct. 2093 (first alteration in original). Taking comfort from the Supreme Court’s decision in Good News Club, Bronx Household again requested to use school facilities for Sunday services.

Bronx Household II, 331 F.3d at 346. The application was again denied, pursuant to the same SOP (since renumbered as § 5.11). Id. at 346-48. Bronx Household again brought suit to challenge the denial. This time the district court granted a preliminary injunction, provisionally requiring the City defendants to allow Bronx Household to use the school during the pendency of the litigation. Bronx Household of Faith v. Board of Education, 226 F.Supp.2d 401, 427 (S.D.N.Y.2002). On appeal, we affirmed the preliminary injunction. Bronx Household II, 331 F.3d at 354. Bronx Household then moved in the district court for

summary judgment to convert the preliminary injunction into a permanent ruling. The City cross-moved for

summary judgment in its favor. Up to this point, all adjudications had been with reference to SOP § 5.9, renumbered as SOP § 5.11 (in other words, Old SOP § 5.11).

The City, however, wrote to the district court advising that the City “seek[s] to implement a policy with language that varies from the policy language that has been preliminarily enjoined.” The City explained that in contrast with the old rule, which prohibited use of school property for “religious services or religious instruction,” the Proposed SOP § 5.11 would prohibit use of school property for “religious worship services, or otherwise using a school as a house of worship.” The City told the court that with respect to the motions for

summary judgment, the City would be defending the new policy. The district court expressed doubt whether, given

Article Ill’s limitations on federal court jurisdiction, it could properly rule on the constitutionality of a proposed SOP, which had not been invoked against Bronx Household. Seeking to allay the court’s doubts, the City explained in a letter: Should [the City] defendants prevail in their motion for

summary judgment and the preliminary injunction Order be vacated, then any future application by [Bronx Household] to hold their worship services at P.S. 15 ... will be denied [pursuant to the proposed SOP]. Bronx Household of Faith v. Board of Educ. of City of New York (“Bronx Household III”), 400 F.Supp.2d 581, 588 (S.D.N.Y.2005) (quoting the City’s letter of August 17, 2005). The district court was thereby persuaded that it was presented with a justiciable controversy involving the application of Proposed SOP § 5.11. The court then granted

summary judgment in favor of Bronx, Household, permanently enjoining the City from enforcing the proposed SOP against Bronx Household. Id. at 601. The City defendants then brought this appeal. DISCUSSION In my view, the district court’s first instincts were sound, and the court was led astray by the City’s speculation on'possible future adoption and enforcement of the proposed SOP. In my view, no ripe dispute involving the enforcement of Proposed SOP § 5.11 was before the court. I. Principles of Standing and Ripeness That Apply to This Case

Article III of the Constitution limits the judicial power of the federal courts to the adjudication of “cases” and “controversies.” Aspects of this generalized limitation are classified in terms of whether a plaintiff has standing, or whether a dispute is ripe. Although standing itself has multiple aspects, see Flast v.

Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968) (noting that standing has been called one of the most amorphous concepts in public law), its “core component” is that, in order to have claims adjudicated by a federal court, the plaintiff “must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief,” Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984).

While the requirements implicit in the notion of “injury” are “not susceptible of precise definition,” id., they have been described in terms of whether the plaintiff has a “personal stake in the outcome,” and whether the injury in question is “particular [and] concrete,” and whether it results “directly]” from the defendant’s actions, United States v.

Richardson, 418 U.S. 166, 179-80, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974) (quotation marks omitted). “It is an established principle that to entitle a private individual to invoke the judicial power [of the United States courts] to determine the validity of executive or legislative action he must show that he has sustained or is immediately in danger of sustaining a direct injury as the result of that action and it is not sufficient that he has merely a general interest common to all members of the public.” Id. at 177-78, 94 S.Ct. 2940 (quoting Ex parte Levitt, 302 U.S. 633, 634, 58 S.Ct. 1, 82 L.Ed. 493 (1937) (quotation marks omitted)).

Ripeness overlaps in some respects with standing, “most notably in the shared requirement that the [plaintiffs] injury be imminent rather than conjectural or hypothetical,” Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219, 225(2d Cir.2006), and courts at times use either term to refer to this requirement. Nonetheless, the central concerns of ripeness doctrine are somewhat distinct from standing.

Standing, in its “fundamental aspect,” “focuses on the party seeking to get his complaint before a federal court” and whether that party suffers a sufficiently direct and concrete injury to be heard in complaint. Flast, 392 U.S. at 99, 88 S.Ct. 1942. By contrast, the fundamental concern of ripeness is whether at the time of the litigation the issues in the case are “ ‘fit’ for judicial decision.” National Park Hospitality Ass’n v.

Dep’t of the Interior, 538 U.S. 803, 814, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003) (Stevens, J., concurring); see also Regional Rail Reorganization Act Cases, 419 U.S. 102, 140, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974) (“ripeness is peculiarly a question of timing”). The concept of ripeness assumes that the relationship between the parties might at some point ripen into an injury sufficiently direct and realized to satisfy the requirements of

Article III standing. It recognizes, however, that some disputes mature in stages, going through preliminary phases during which the injury is as yet but a speculative possibility, too remote or hypothetical to warrant present submission to a federal court. Such a dispute is considered as yet “unripe” for adjudication.

In the present dispute, there can be no doubt that if the City were to reject Bronx Household’s application to use school property on the ground that such use would violate Proposed SOP § 5.11, Bronx Household’s claim that such a rejection violates the First Amendment would fully satisfy the requirements of standing and ripeness. In those circumstances, the City’s invocation of its SOP to deny a permit would be causing an immediate, direct, and concrete injury to Bronx Household.

The concern I express is whether any dispute over the application of Proposed SOP § 5.11 has as yet caused any ripe injury to Bronx Household. I accordingly will focus in the following discussion on those decisions which concern the ripeness of the dispute, regardless of whether they speak in terms of “ripeness” or of “standing.” In its leading case on these concerns, Abbott Laboratories v.

Gardner, the Supreme Court explained that the “basic rationale” of the doctrine of ripeness is to “prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements” and to prevent “judicial interference” until the effects of a defendant’s actions are “felt in a concrete way” by the plaintiffs. Abbott, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977).

As outlined in Abbott, the ripeness inquiry generally requires a federal court to consider “the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Id. at 149. The plaintiffs in Abbott, who were proprietary pharmaceutical manufacturers, brought a challenge to a Food and Drug Administration regulation which required that each time a proprietary drug’s brand name appeared on a label, the generic name had to be given as well. Id. at 138, 87 S.Ct. 1507.

The regulations, which were already in effect when the plaintiffs brought suit but had not been enforced against the plaintiffs in any way, carried heavy potential criminal and civil sanctions for violations. Id. at 151-52, 87 S.Ct. 1507. The Court found that the claim was ripe for adjudication.

It noted that the question presented was a “purely legal one,” the regulation constituted “final agency action” within the meaning of the Administrative Procedures Act, id. at 149, 87 S.Ct. 1507(quotation marks omitted), and the impact of the regulations on the plaintiffs was “sufficiently direct and immediate as to render the issue appropriate for judicial review,” id. at 152, 87 S.Ct. 1507.

In particular, the Court noted that the regulation’s mere existence put the plaintiffs “in a dilemma”—they had to either comply with the regulations, incurring substantial economic costs to alter their labeling in a manner likely to harm their sales, or risk severe sanctions. Id. For more or less the same reasons, the Court found that the plaintiffs had standing to sue. Id. at 154, 87 S.Ct. 1507. On the same day, the Supreme Court dismissed a companion case, Toilet Goods Association v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967), which illustrates the flip-side of the coin.

The plaintiffs, a group of cosmetics manufacturers, challenged an FDA regulation which required the plaintiffs to grant the agency access to inspect their manufacturing facilities, processes, and formulae. Id. at 161, 87 S.Ct. 1520. The FDA had as yet made no demand under the regulations for access to the plaintiffs’ facilities.

A number of questions of application remained unresolved, including what enforcement problems the FDA had encountered that would justify such inspections, the reasons that the FDA Commissioner might give to justify a particular order of inspection, and the safeguards the agency would devise to protect trade secrets. Id. at 163-64, 87 S.Ct. 1520.

The Court dismissed the case as unripe, explaining: “We believe that judicial appraisal of these factors is likely to stand on a much surer footing in the context of a specific application of this regulation than could be the case in the framework of the generalized challenge made here.” Id. at 164, 87 S.Ct. 1520.

Of special importance, the Court noted the lack of “hardship” to the parties from postponing judicial review until “more light may be thrown on the Commissioner’s statutory and practical justifications for the regulation”: “This is not a situation in which primary conduct is .affected.... [N]o advance action is required ... [and] no irremediable adverse consequences flow from, requiring a later challenge.” Id. at 164, 87 S.Ct. 1520. In Reno v.

Catholic Social Services, Inc., 509 U.S. 43, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993), a class of alien plaintiffs challenged certain Immigration and Naturalization Service regulations which had raised barriers to an undocumented alien’s ability to obtain authorization for permanent residency.

The Court found the issues presented to be unripe (at least as to some plaintiffs) largely because the regulations at issue, as in Toilet Goods, “impose[d] no penalties for violating any newly imposed restriction,” but rather “limit[ed] access to a benefit ... not automatically bestowed on eligible aliens.” Id. at 58, 113 S.Ct. 2485 (emphasis added). In other words, a plaintiffs claim was unripe unless the alien had taken all possible steps to gain access to the immigration benefit, and had been denied the benefit on account of the disputed regulation. Id. at 59, 113 S.Ct. 2485.

Particularly illustrative is National Park Hospitality Ass’n v. Department of the Interior, 538 U.S. 803, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003). The plaintiff, an association of concessioners doing business in national parks, sought pre-enforcement review of whether a National Park Service regulation could exclude concession contracts from the protective reach of the Contract Disputes Act of 1978. Id. at 804-05, 123 S.Ct. 2026. The Court concluded that the plaintiffs claims were not yet ripe.

As in Toilet Goods, the Court noted the lack of hardship to the parties from delaying review, given that the regulation does not “command anyone to do anything or to refrain from doing anything,” does not “grant, withhold, or modify any formal legal license, power, or authority,” does not “subject anyone to any civil or criminal liability,” and creates “no legal rights or obligations.” Id. at 809, 123 S.Ct. 2026(quoting Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 733, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998) (quotation marks omitted)).

The Court also found the issue unfit for judicial review, given the parties’ explicit or implicit acknowledgment that different types of concession contracts might present different legal questions. Id. at 812, 118 S.Ct. 1665. As a result, the Court found that “further factual development would ‘significantly advance our ability to deal with the legal issues presented,’” and therefore adjudication should “await a concrete dispute about a particular concession contract.” Id. (quoting Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 82, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978)).

The concurring and dissenting Justices in National Park agreed with the framework of the majority’s ripeness analysis, while disagreeing with some of the majority’s conclusions. The concurring opinion would have found that the case was ripe for review but that the plaintiff lacked standing. See National Park, 538 U.S. at 814-17, 123 S.Ct. 2026 (Stevens, J., concurring).

Justice Breyer’s dissenting opinion would have found that the dispute satisfied both standing and ripeness requirements. ín his view, the challenged regulation “causes a present injury” that is “immediate” and “concrete,” in the form of higher contract implementation costs which force concessioners bidding for government contracts to pay more to obtain a contract than they believe it is worth. Id. at 818-19, 123 S.Ct. 2026 (Breyer, J., dissenting). In concluding that a case is “unripe,” courts often mean that the dispute has not yet matured into a “case” or “controversy” within the meaning of

Article III, so that the court is without jurisdiction to enter judgment. See, e.g., Marchi v. Bd. of Coop. Educ. Servs., 173 F.3d 469, 478 (2d Cir.1999) (describing and applying ripeness analysis as a constitutional prerequisite, without discussing prudential concerns).

Courts have also, however, invoked the ripeness doctrine to justify dismissal in circumstances where adjudication would not necessarily have exceeded the courts’ constitutional power but the prospect of injury was nonetheless sufficiently remote or conjectural that the court considers it prudent not to exercise jurisdiction until the dispute has further ripened to produce a more palpable injury. See, e.g., Simmonds v. I.N.S., 326 F.3d 351, 358, 361(2d Cir.2003) (finding that plaintiffs claims “surely present a live case or controversy,” but dismissing the petition on the grounds of prudential unripeness).

Although in many cases courts fail to employ a strict taxonomy distinguishing constitutional from prudential considerations, see, e.g., National Park, 538 U.S. at 808, 123 S.Ct. 2026 (noting simply that ripeness doctrine derives from

Article III and from prudential considerations), other courts have distinguished “prudential unripeness” from “constitutional unripeness,” see Sim-monds, 326 F.3d at 357. The ripeness principles elaborated in the foregoing cases bear heightened importance when, as in the present case, the potentially unripe question presented for review is a constitutional question. “If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality ... unless such adjudication is unavoidable.” Spector Motor Service v.

McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 89 L.Ed. 101 (1944). The principle of constitutional avoidance is an integral part of the ripeness analysis in such cases, and tilts the balance in favor of finding a constitutional issue unripe for review. Poe v.

Ullman, 367 U.S. 497, 503-04, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961) (“The various doctrines of ‘standing,’ ‘ripeness,’ and ‘mootness’ ... are but several manifestations—each having its own ‘varied application’'—of the primary conception that federal judicial power is to be exercised to strike down legislation, whether state or federal, only at the instance of one who is himself immediately harmed, or immediately threatened with harm, by the challenged action.” (footnotes omitted)).

In cases involving the constitutionality of state legislation the Supreme Court has therefore warned federal courts to consider, before passing on the merits of the question, whether “questions of construction, essentially matters of state law, remain unresolved or highly ambiguous.” Rescue Army v. Municipal Court of City of Los Angeles, 331 U.S. 549, 568, 574, 67 S.Ct. 1409, 91 L.Ed. 1666 (1947); cf. Arizonans for Official English v.

Arizona, 520 U.S. 43, 79, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (“Warnings against premature adjudication of constitutional questions bear heightened attention when a federal court is asked to invalidate a State’s law, for the federal tribunal risks friction-generating error when it endeavors to construe a novel state Act not yet reviewed by the' State’s highest court.”). Jurisdiction should be exercised in such cases only when the constitutional issues are presented “in clean-cut and concrete form, unclouded by any serious problem of construction.” Rescue Army, 331 U.S. at 584, 67 S.Ct. 1409. II.

Adjudication of Proposed SOP § 5.11 The circumstances confronted by the district court when asked to rule on the constitutionality of Proposed SOP § 5.11 are those which have led courts to the conclusion that the case was unripe for adjudication. A. Lack of Present Harm to the Party Opposing the Regulation To start with two obvious propositions:

(1) There is without question a ripe controversy between the parties involving the application of Old SOP § 5.11 to bar Bronx Household from using school property. The fact, however, that one controversy between the parties is ripe for adjudication does not mean that all disputes between the parties present ripe questions. Without doubt the district court could properly have entered a final judgment on the constitutionality of Old SOP § 5.11. It is the adjudication of the constitutionality of the new proposed SOP that is problematic.

(2) Had Proposed SOP § 5.11 been invoked by the City as the basis for denying Bronx Household use of school property, Bronx Household would have standing to challenge its constitutionality, and the dispute would be ripe for adjudication. This, however, has not happened. In fact, it appears the proposed SOP has not even been adopted, and that the City is ¿waiting the court’s judgment on its constitutionality before adopting it.

Not only has the City never relied on Proposed SOP § 5.11 to deny Bronx Household’s application, but Bronx Household has never even applied to use school property under the standards of Proposed SOP § 5.11. Bronx Household has been excluded under the standards of the predecessor SOP and has obtained a preliminary injunction granting it provisional access to school property on the basis of the probable unconstitutionality of that SOP. At present Bronx Household is therefore not being excluded from the schools at all, much less by reason of the proposed SOP.

I recognize that a regulation can cause harm to a covered entity even without being enforced. Thus in Abbott the Supreme Court found that the FDA’s labeling regulation caused actual harm to covered drug manufacturers even without being enforced, because the manufacturer was required either to adopt a disadvantageous change in its labeling practices or risk incurring serious penalties and liabilities.

See Abbott; 387 U.S. at 153, 87 S.Ct. 1507 (“[WJhere a regulation requires an immediate and significant change in the plaintiffs’ conduct of their affairs with serious penalties attached to noncompliance, access to the courts ... must be permitted see also AT & T Corp. v. Iowa Utilities Bd., 525 U.S. 366, 386, 119 S.Ct. 721, 142 L.Ed.2d 835 (1999) (“When ... there is no immediate effect on the plaintiffs primary conduct, federal courts normally do not entertain pre-enforcement challenges.... ”); Texas v.

United States, 523 U.S. 296, 301, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (no “hardship” because plaintiff “is not required to engage in, or to refrain from, any conduct”). And in National Park, the majority and the dissent disagreed over whether the obligation on- would-be concessioners to increase their bids in anticipation of increased operating costs resulting from the questioned regulation caused sufficient injury to confer ripeness on the concessioners’ challenge to the regulation. Here, the City’s proposed adoption of a new SOP causes no such harm to Bronx Household.

Even if the proposed SOP had been adopted, Bronx Household would not be obligated by it to amend its practices in any way. The provision would not command Bronx Household to do anything or to refrain from doing anything, nor would it grant, withhold, or modify any legal license, power, or authority, nor would it subject Bronx Household to civil or criminal liability. See National Park, 538 U.S. at 809, 123 S.Ct. 2026.

The proposed SOP would merely create a possibility that at some future time, it may cause Bronx Household to be excluded from use of the schools—at which time Bronx Household could challenge its constitutionality. See Simmonds, 326 F.3d at 360 (“The mere possibility of future injury, unless it is the cause of some present detriment, does not constitute hardship.”). B. Lack of Harm to Either Party from Delay Among the factors courts examine to determine ripeness is whether either party to the dispute would be harmed by delaying adjudication until the dispute ripens.

I think it clear that neither party would be harmed by delay in adjudicating the constitutionality of Proposed SOP § 5.11. Bronx Household continues to be protected by the preliminary injunction, and there is no impediment to the entry of final judgment relating to the SOP that was actually enforced against it (Old SOP § 5.11). The City will suffer no harm if adjudication of the constitutionality of Proposed SOP § 5.11 awaits such time as it is actually adopted and invoked. The parties may find it convenient to get this resolved now.

But loss of such = convenience is not sufficient harm to make a hypothetical future dispute ripe for immediate adjudication. In a deviation from the conventional pattern, it is the governmental entity sponsoring the regulation, rather than the person potentially affected, that has asked that the lawfulness of the regulation be immediately adjudicated. However, the City is not barred from vindicating its governmental interest by adopting and enforcing the proposed standard against Bronx Household. The preliminary injunction, which was in effect when the parties cross-moved for

summary judgment, barred the City from excluding Bronx Household under the old rule. It did not purport to bar the City from adopting or enforcing different standards. When the City’s attorney expressed a concern that the, preliminary injunction might bar the City from enforcing the new policy, the district court judge responded, “I don’t recall that the injunction prohibited the [Department of Education] from changing its policy.” If the City still entertained doubts about a risk of contempt, it could have sought further assurance from the district court.

By asking the court to rule on the constitutionality of a policy that had neither been enforced nor even adopted, the City was essentially asking for an advisory ruling on courses of action it had contemplated but not taken. The City was asking the court: if the City adopts the proposed SOP, and if Bronx Household applies to use school space under that new provisio

[…]