UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -----------------------------------------------------------------------x

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

Plaintiffs,

-against-

BOARD OF EDUCATION OF THE CITY OF NEW YORK and COMMUNITY SCHOOL DISTRICT No. 10,

Defendants.

DECLARATION OF CARMEN FARINA

01 CV 8598 (LAP)

-----------------------------------------------------------------------x

CARMEN FARINA, under penalty of perjury, declares pursuant to 28 U.S.C.

§ 1746 that the following is true and correct:

1. I am the Deputy Chancellor for Teaching and Learning for the New York City

Board of Education, or Department of Education (“DOE”). In this position, my responsibilities

include overseeing instructional activities in all of New York City’s public schools. I have

served in this position since March 11, 2004.

2. I understand that DOE is currently under a preliminary injunction that requires

schools to grant permission to churches and other religious organizations that seek to have

regular worship services in public school buildings during non-school hours on the same basis as

other permitted activities. I am advised by counsel that plaintiffs seek to make this preliminary

injunction permanent.

3. As discussed below, DOE seeks to reinstitute a policy that would not permit

worship services in public school buildings. My perspective on this issue is informed by my

more than three decades of experience with DOE as a teacher, principal, superintendent and

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Deputy Chancellor. I taught elementary school children (from the second through sixth grades)

for more than 20 years, and was the principal at P.S. 6, an elementary school in Manhattan for

Kindergarten through sixth grade, for 10 years. I worked as a curriculum coordinator for five

years, and served as the community superintendent for District 15 in Brooklyn for two and one-

half years. I then served as the Regional Superintendent for Region 8 in Brooklyn before I was

promoted to my current position. I have also served on the faculty at the Bank Street College

Principal’s Institute.

4. Briefly, there are several reasons that DOE seeks to implement this policy, all

of which are supported by DOE’s actual experience under the preliminary injunction. First, in

this wonderfully diverse City, DOE seeks to avoid being perceived as endorsing or sponsoring

any particular religion or congregation. Second, because of the school schedule, schools are not

equally available for the main worship services for all religions – thus, DOE or school officials

may be perceived as favoring one religion over another. Finally, DOE is concerned about school

officials becoming involved in religious matters, such as may occur when enforcing rules of

general applicability which pertain to how permit holders use school facilities, or in other

circumstances relating to a congregation’s use of a school as its primary place of worship. For

all of these reasons, in our view, permitting worship services in DOE’s public schools violates

the separation of church and state. Additionally, we believe that these concerns weigh against a

permanent injunction making religious worship services a permanent activity in the City’s

schools.

5. DOE permits religious clubs for students to meet in its schools during non-

school hours, and a number of faith-based institutions provide after school secular programs for

DOE students. However, having a school used for religious worship services crosses the line

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between treating all religious groups equally, and actually endorsing or sponsoring a particular

religion or congregation – the school becomes directly identified with a particular congregation

or religion in a way that can be confusing for children, parents and other community members

who do not attend the services, and can even be divisive within the school community.

Defendants therefore seek to reinstitute a policy that does not permit worship services in schools,

and respectfully request that the Court enter summary judgment in their favor.

I. The New York City Public School System

6. New York City has the largest public school system in the United States.

There are almost 1.1 million students enrolled in more than 1,300 public schools and programs.

7. New York City’s public school students come from all over the world. More

than 140,000 students are enrolled in English Language Learner programs; these students speak

more than 140 different languages. DOE does not collect data on students’ religious

backgrounds, but it can reasonably be inferred that students’ religious beliefs are as diverse as

the world offers.

8. In New York City, many schools are centrally located in densely populated

and/or busy commercial neighborhoods. Hundreds or even thousands of people may walk or

drive by a school on any given day, including Saturday or Sunday. For example, schools may be

located in the same block as apartment buildings, subway stations, and stores. Schools may be

located next to parks or playgrounds that are regularly used in the evening or on weekends. They

may be located near libraries, museums or concert halls. They may be located near churches,

synagogues, mosques or temples.

9. New York City’s public schools are frequently open after school and on

weekends for school activities. Most activities that take place in schools over the weekend are

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sponsored by DOE, or provided by outside organizations that have a partnership with a school or

have a DOE or City contract to provide services for children. DOE also permits certain other

activities by outside organizations, primarily to expand enrichment opportunities for children and

to enhance community support for the schools. DOE does not permit partisan political activities

or commercial activities (other than flea markets that raise money for schools), in order to avoid

having schools identified with particular political parties or candidates or commercial interests. I

have been advised that the activities that take place in schools after school and on weekends are

discussed in detail in declarations provided by Andres Alonso and Michele Cahill.

II. Reasons for Not Permitting Religious Worship Services in Public School Buildings

10. As the Court is aware, DOE previously prohibited the use of schools for

“religious services or religious instruction,” while permitting “the use of school premises by

outside organizations or groups after school for the purpose of discussing religious material or

material which contains a religious viewpoint or for distributing such material.” DOE now seeks

to replace this section of its Standard Operating Procedures Manual with the following language:

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.

Under this policy language, if an outside organization sought to use school premises for a

religious club for students, DOE would consider the permit application on the same basis as any

other application for any other outside student group. However, permits would not be granted to

congregations for religious worship services.

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11. The reasons DOE seeks to implement this policy are outlined in paragraph 4

above. Each of these reasons is discussed in more detail below.

A. Confusion and Perception of Endorsement

12. Religion is deeply personal, and the people of this City have very diverse

beliefs. It has been my experience that many community members, and particularly families

with children attending the public schools, view the neighborhood school as “their” school – a

place that is welcoming for all children and their families. The role of the school in the

community has further expanded in recent years, as most schools now have after school or

weekend programs for children that are sponsored by the school and/or outside organizations.

Some schools also provide programs for adults, such as parenting workshops or English as a

Second Language classes. DOE is concerned that some children or their families may feel less

welcome at their school if they identify the school with a particular religion or congregation.

13. The identification of a school with one religion or congregation may come

about when children or other community members learn that a congregation is having its regular

worship services in a school, with a fixed time and place, simply because people commonly

associate churches and other congregations with the buildings in which they meet.

14. Children and other community members who do not attend the worship

services in a school may learn about the services in a variety of ways. Given the locations of

schools, the presence of regular worship services in a school can be highly visible to community

members who do not participate in the service. This is clearly the case if the group puts up signs

in front of the school or distributes flyers advertising the service, as has happened with some

congregations. But even without advertising of this nature, community members may learn

about the services through other means. For example, people in the neighborhood may see large

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numbers of congregants going in and out of the school building for the services, or people setting

up for the service; they may hear the service from the street; or they may have friends, family

members or classmates who attend the service. Furthermore, at some schools, other outside

activities – which may include programs involving students who attend the school -- may take

place on the school premises at the same time as the services.

15. Identification of the school with a congregation may also come about from the

way in which the congregation or its members talk about the school in informal conversations

with community members, in advertising materials, or in statements made during the services.

DOE cannot – and should not -- be in the position of monitoring what congregations say at their

services, or in other communications with their members and the public.

16. Also, services tend to dominate the space that is available during non-school

hours. Congregations generally use the largest rooms in the school, such as the auditorium

and/or cafeteria, and sometimes multiple classrooms. Most congregations that have their regular

services in a school use this space at least once a week throughout the year, for a number of

hours at a time.

17. Furthermore, community members may see one group continue to use the

school as its primary place for worship over an extended period of time. Under DOE policy,

organizations may obtain permission to use schools for no more than one year at a time.

However, as a practical matter, once one group is using the space on a regular basis, it is

common for the group to expect that its permit will be renewed for the following year.

Moreover, as a practical matter a school will typically become the regular place for worship for

one congregation exclusively – which I am advised has in fact been the case in more than 20

DOE schools during this school year.

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18. A congregation’s presence in a school may be particularly confusing for

children. I know from my training and experience that children -- especially elementary school

or middle school children -- think in absolutes, and are unlikely to understand that a church that

uses their school for its religious worship services is not sponsored or supported by the school.

Also, they are very impressionable, and vulnerable. Young children who see that a church or

other religious institution is using the school as the place for its regular worship services, or who

themselves attend the services, could easily and understandably conclude that the religious

institution is supported by the school. Most activities that occur in schools during non-school

hours are in fact sponsored by the school, or by organizations that have a partnership with the

school or a contract to provide after school programs. Children in fact could be on school

premises for a school-related after school program while a service is taking place in a school.

Children may also know staff members or other authority figures from the school who attend the

services. For all of these reasons, it could be exceedingly difficult for a child to understand that

the church is not part of the school, particularly if many of the people attending the services are

from the school community.

19. Schools have tremendous influence in the lives of children. Children spend

more time at school than anywhere else outside of the home. In addition to attending school five

days a week for about seven hours a day, many children participate in after school or weekend

programs at their schools. In addition to providing academic instruction, schools contribute to

children’s social and moral development. Many children look to school staff as role models.

Given the importance of schools in children’s lives, it is critical that schools not be perceived as

supporting any particular religion or congregation. Children who are not part of a congregation

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meeting in their school or who do not practice its religion could feel unwelcome, or even

alienated from the school.

20. As a practical matter, there is no meaningful way for DOE to preserve a

distinction between a school, and the school’s use as a religious institution’s primary place of

worship. DOE requires that outside organizations include with materials that mention the

school’s name a disclaimer that states that DOE does not sponsor or endorse the organization’s

activities. A copy of a memorandum sent from DOE’s General Counsel to superintendents and

principals concerning this issue is attached as Exhibit A. However, this rule is difficult to

enforce given the wide variety of ways in which churches and their members can communicate

with others, as discussed above. Also, because community members may learn about the

services at the school without seeing a sign or flyer, they may not see the disclaimer.

21. Furthermore, based on my many years of experience working with children, a

written disclaimer in this context generally would not be understood by young children even if

they see it. Also, a disclaimer is obviously meaningless for children who have not yet learned

how to read.

22. Even adult community members who see a disclaimer may consider it

inconsistent with what they see and know. Once a public building becomes the primary place for

a congregation’s worship services, community members may perceive sponsorship simply from

the fact that DOE permits the activity, particularly given that DOE does not charge “rent” but

only the cost for custodial services, and for security provided by the New York City Police

Department if requested by the organization. No disclaimer can dispel the notion in the

community that the school building has taken on the attributes of a church, or that DOE is

subsidizing religion.

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23. This concern that community members will perceive sponsorship is not

merely theoretical. DOE has in fact received complaints from parents and other community

members who have expressed concern about religious worship services taking place in public

school buildings in their neighborhoods. I am advised that the reaction of some community

members is discussed in declarations by Veronica Najjar, Gail Rosenberg, Thomas Goodkind,

Frances Rabinowitz, and Daniel Schaffer.

B. Lack of “Equal Access” for Worship Services

24. DOE is also concerned that opening its schools for regular worship services

puts schools in the position of providing this benefit for some religious groups and not others. In

contrast with student religious clubs, which could meet on any day of the week, most

congregations have particular days and times of worship that are required by their faiths. These

days and times are not all consistent with the times when schools are available. Schools are in

session from Monday through Friday, from approximately 8:00 am to 3:00 pm. No outside

organization would be permitted to use school facilities for worship services when school is in

session. For example, if a Muslim organization sought to use a school during the school year for

services on Fridays at midday, the request would be denied. Also, many schools have school-

sponsored activities on Friday evenings or Saturday mornings, when synagogues generally have

services. Schools are more available on Sundays than on any other day of the week.

25. This concern also is not just theoretical. I have been advised that at least one

school has actually been in the position of granting a permit for regular Christian worship

services on Sundays; and rejecting a request to use the school for Jewish worship services on

Saturday, because of the school’s Saturday academic programs. I am advised that this issue is

discussed in a declaration submitted by Sean Walsh.

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C. Involving School Officials in Religious Matters

26. DOE is also concerned about the relationships between school officials and

congregations when schools are used as houses of worship. School principals are ultimately

responsible for the activities that take place in their buildings, both during school hours and after

school. Principals are responsible for approving permits for outside organizations, and for

ensuring that outside organizations’ use of the building is consistent with DOE policy. To

enforce DOE rules, school officials may be in the position of monitoring religious activities. For

example, enforcing the disclaimer requirement could require reviewing any materials that

identify the school as the site of the congregation’s worship services.

27. Even determining whether the activities of a particular congregation are

consistent with DOE’s rules concerning use of school premises could require inquiries into the

congregation’s religious practices. Because DOE cannot be in the position of monitoring

congregations’ religious activities, in order to comply with the preliminary injunction, DOE has

instructed school officials to grant permit applications for religious worship services on the same

basis as for other activities, provided that school space is available.

28. Also, enforcing rules against congregations that have become dependent on

the school for space can potentially be divisive. If a group is not complying with DOE rules,

DOE has authority to revoke the group’s permit to use the school immediately, without further

notice. However, when enforcing rules against a congregation that is using the school as its

primary place of worship, school officials could be perceived as interfering with the

congregation’s religious activities. I am advised that an example of an incident in which a

congregation violated DOE rules is discussed in declarations provided by Sandy Brawer and

Sean Walsh.

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29. Furthermore, once a school becomes the primary place of worship for a

congregation, community members may hold school officials responsible for the congregation’s

actions. School officials can be put in the position of having to respond to the congregation’s

proselytizing activities. Again, this concern is not theoretical. For example, I have been advised

of a situation at M.S. 51 in Brooklyn, where a church gave free refreshments to children during

the school day and invited them to the church’s services at the school; and an incident at P.S. 89,

where a church unexpectedly brought proselytizing materials to a Parent-Teacher Association

event. I understand that these incidents are discussed in declarations provided by Gail

Rosenberg and Veronica Najjar.

30. To conclude, permitting religious worship services in schools results in the

unavoidable identification of those schools with particular congregations; different treatment of

religious groups based on their day or time of worship; and inappropriate involvement of school

officials in religious matters. For all of these reasons, defendants respectfully request that the

Court deny plaintiffs’ application for a permanent injunction and grant summary judgment to

defendants.

Dated: New York, New York April 7, 2005

____________________________________ CARMEN FARINA