KEARSE, Circuit Judge:
Plaintiffs The Parents' Association of P.S. 16, et al. ("Parents"), appeal from an order of the United States District Court for the Eastern District of New York, Mark A. Costantino, Judge, denying their motion for a preliminary injunction against the implementation by defendants Nathan Quinones, Chancellor of the City School District of the City of New York, et al. (the "City"), of a federally funded remedial education program at Public School 16 in Brooklyn, New York ("P.S. 16"), for parochial school students from the Beth Rachel Satmar Hasidic School ("Beth Rachel"). Parents contended that the program planned by the City would violate their rights under, inter alia, the Establishment Clause of the First Amendment to the Constitution of the United States, as applied to the states through the Fourteenth Amendment, and the Equal Protection Clause of the Fourteenth Amendment. The district court denied Parents' motion, finding that plaintiffs had not established any violation of their constitutional rights or any irreparable injury. On appeal, Parents contend that the district court applied erroneous legal principles and erred in denying their motion without an evidentiary hearing. We find merit in these contentions and we therefore reverse the order denying Parents' motion for a preliminary injunction and remand for entry of an injunction against implementation of the proposed program pending the adjudication of the merits of Parents' claims.
P.S. 16 is a public school located in the Williamsburg section of Brooklyn, providing elementary level education for boys and girls. The great majority of the students attending P.S. 16 are Hispanics. Beth Rachel, located some four blocks away, is a private elementary school affiliated with the Satmar Hasidic Jewish sect; all of its students are girls of the Hasidic Jewish faith. Both P.S. 16 and Beth Rachel are located within Community School District 14 ("District 14").
Chapter 1 of the Education Consolidation and Improvement Act of 1981 ("Chapter
In 1985, the United States Supreme Court in Aguilar v. Felton, ___ U.S. ___, 105 S.Ct. 3232, 87 L.Ed.2d 290 (1985) ("Aguilar"), upholding the decision of this Court in Felton v. Secretary, United States Department of Education, 739 F.2d 48 (2d Cir.1984) ("Felton"), ruled that "`the use of federal funds to send public school teachers and other professionals into religious schools to carry on instruction, remedial or otherwise, or to provide clinical and guidance services'" violated the Establishment Clause of the First Amendment. Aguilar, 105 S.Ct. at 3236 (quoting Felton, 739 F.2d at 50). In an effort to comply with the restrictions imposed in Aguilar, the City adopted a plan to conduct remedial education classes for the Beth Rachel students on the premises of P.S. 16.
A. Hasidic Constraints and the City's Plan
In general, the Hasidic faith stresses a strict separation between the Hasidim and the rest of society. Many of the Satmar Hasidim speak Yiddish in their homes, and Yiddish is the principal language of many of the Beth Rachel students. As part of their Orthodox Jewish beliefs, the Hasidim require the separation of males and females for virtually every activity, including schooling.
In an effort to induce Beth Rachel administrators to send their students to P.S. 16 for remedial education classes, the City adopted the plan here challenged (the "Plan"). A group of nine classrooms in the northwest wing of P.S. 16 was dedicated to the use of the Beth Rachel students. That section of the school was closed off from the rest of the school — used by the public school students — by the construction of swinging doors and supporting walls in a previously open corridor. Beth Rachel students were assured that their Chapter 1 classes would be conducted separately from any such classes for the public school students. Public school teachers would be provided; all would be women and all would be Yiddish-speaking. English would be taught as a second language ("ESL"), with resort to Yiddish to facilitate the Beth Rachel students' understanding. A reading method known as "Distar," previously tried and rejected by District 14 for its public school students, would be used for the Beth Rachel students since that method is used in their regular parochial school classes.
According to affidavits and exhibits submitted by Parents, the City stated both to them and to the news media that the Plan was designed having in mind the "differences in religion and culture between the Hasidics and the rest of the children" (Affidavit of plaintiff Nelida Morales, dated August 28, 1986, ¶ 25) ("First Morales Affidavit"), and that without these features, the Beth Rachel students would refuse to attend remedial classes in P.S. 16 for religious reasons.
The same article reported that City "officials have said they decided the walls would be the best way to accommodate the students at PS 16 because Hasidim require the separation of the sexes as part of their Orthodox Jewish beliefs." Parents asserted that "there is a general perception amongst non-Hasidics in the area that public officials generally have favored the politically powerful Hasidic Community in housing and other government programs at the expense of everyone else." (First Morales Affidavit, ¶ 35.)
Thus, arguing that the City's Plan "suggests the cruel and false idea that our children are inferior and/or dangerous to the Hasidic children who the District plans to send to P.S. 16" (id. ¶ 6), and that it is their "children's sense that the walls are there to keep them out and that there are people who consider them undesirable" (Affidavit of plaintiff Nelida Morales, dated September 11, 1986, ¶ 15), Parents contended that the Plan invidiously discriminated against the public school students and so involved the City with the Hasidic religious sect as to constitute an establishment of religion in contravention of the First Amendment. Parents moved for a preliminary injunction against implementation of the Plan.
In opposition to the motion, the City argued that its Plan was not intended to discriminate on a racial or religious basis and that maintaining separate Chapter 1 programs for all public and parochial school students is necessary in order to encourage parochial school parents and administrators to send their children to remedial classes in the public schools. The City stated that if it were to merge the Beth Rachel and P.S. 16 classes, the Beth Rachel students would refuse to attend "under the precepts of their religion," and that the need for separate programs at P.S. 16 was "reinforce[d]" by "the Beth Rachel students' religious convictions." (Affidavit of Robert J. Radday, Director of Reimbursable Programs for Community School District No. 14, in Opposition to Preliminary Injunction, dated September 1986, ¶¶ 24, 19).
B. The Decision of the District Court
The district court denied Parents' motion without holding an evidentiary hearing on the merits of plaintiffs' contentions, ruling that the Plan did not violate plaintiffs' rights under the First or the Fourteenth
Memorandum of Decision and Order, dated September 15, 1986 ("Decision"), at 8. The court viewed Parents as "asking the court in effect to force the Hassidic children to give up a sincere religious belief and attend school in a co-educational environment," id. at 10, and concluded that "[t]he placement of students at P.S. 16 is an accommodation and not a symbolic union between church and state," id. at 9, and that "the Constitution ... affirmatively mandates accommodation," id. at 10 (quoting Lynch v. Donnelly, 465 U.S. 668, 673, 104 S.Ct. 1355, 1359, 79 L.Ed.2d 604 (1984)) (emphasis in Decision).
Accordingly, the court denied preliminary injunctive relief. This expedited appeal followed.
On appeal, Parents contend principally that the City's Plan (1) has the primary effect of promoting religion and (2) excessively entangles the state in religious matters, and that the district court therefore erred in denying them a preliminary injunction. The City argues that the injunction was properly denied because the Plan does not have these effects and is no more than a reasonable effort to encourage the Hasidim to send their children to the remedial classes conducted in public school.
A district court's decision to deny a preliminary injunction may not be overturned on appeal absent an abuse of discretion. Coca-Cola Co. v. Tropicana Products, Inc., 690 F.2d 312, 315 (2d Cir.1982); see also Doran v. Salem Inn, Inc., 422 U.S. 922, 931-32, 95 S.Ct. 2561, 2567-68, 45 L.Ed.2d 648 (1975) (granting of preliminary injunction also subject to abuse-of-discretion standard of review). Such an abuse may be found if the district court applied incorrect legal standards or if it relied on findings of fact that are clearly erroneous. E.g., Coca-Cola Co. v. Tropicana Products, Inc., 690 F.2d at 315. In the present case, we conclude that the denial of Parents' motion was an abuse of discretion because the court did not apply pertinent First Amendment standards.
The Establishment Clause of the First Amendment, which is applicable to the states through the Fourteenth Amendment, see McCollum v. Board of Education, 333 U.S. 203, 210-11, 68 S.Ct. 461, 464-65, 92 L.Ed. 649 (1948), provides that "Congress shall make no law respecting an establishment of religion." In interpreting this Clause, described by the Supreme Court as "opaque," Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971), and as drawing a line between church and state that is "blurred, indistinct and variable ... depending on all the circumstances," id. at 614, 91 S.Ct. at 2112, the Supreme Court has developed three tests for determining whether a given state law is one "respecting an establishment of religion." Failure to meet any of the three conditions ordinarily means that the state program transgresses the Establishment Clause:
Lemon v. Kurtzman, 403 U.S. at 612-13, 91 S.Ct. at 2111; see School District of Abington Township v. Schempp, 374 U.S. 203, 222, 83 S.Ct. 1560, 1571, 10 L.Ed.2d 844 (1963) ("Abington") ("[T]o withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion."). The Lemon test has been thought particularly applicable to cases involving the education of children. See Grand Rapids School District v. Ball, ___ U.S. ___, 105 S.Ct. 3216, 3222-23, 83 L.Ed.2d 267 (1985) ("Grand Rapids").
In school cases, the first consideration set forth in Lemon, the validity of the state's purpose, is rarely at issue. The state plainly has a secular interest in ensuring the education of schoolchildren, and Parents in the present case do not assert that the City lacks the requisite purpose. The controversy centers rather on whether the City's Plan has the primary effect of advancing the religious tenets of the Hasidic sect and whether it fosters an excessive entanglement of the City with religion. Our discussion below focuses principally on the "primary effect" test.
The Establishment Clause not only forbids the creation of a state religion, but requires as well that government remain neutral with respect to all religions. Abington, 374 U.S. at 215-16, 83 S.Ct. at 1567-68. The rationale behind the requirement of neutrality is, in part, that governmental actions giving even the appearance of favoring one religion over another are likely to cause divisiveness and disrespect for government by those who hold contrary beliefs:
Abington, 374 U.S. at 222, 83 S.Ct. at 1571. Similarly, in Grand Rapids, the Court stated that
105 S.Ct. at 3222.
The concern for neutrality is nowhere more important than in education programs, for "[t]he government's activities in this area can have a magnified impact on impressionable young minds," id. at 3222, "provid[ing] a crucial symbolic link between government and religion, thereby enlisting — at least in the eyes of impressionable youngsters — the powers of government to the support of the religious denomination," id. at 3223-24. "The symbolism of a union between church and state is most likely to influence children of tender years, whose experience is limited and whose beliefs consequently are the function of environment as much as of free and voluntary choice." Id. at 3226. Thus, the Court has recognized in the context of state provision of teachers for remedial classes in parochial schools, that
Id. at 3226.
These principles were apparently ignored by the district court, which did not cite Grand Rapids or any of the concerns there addressed. Yet the City's Plan seems plainly to create a symbolic link between the state and the Hasidic sect that is likely to have a magnified negative impact on the minds of the youngsters attending P.S. 16. Thus, each day, the public school students would observe some 390 Beth Rachel students arrive at P.S. 16. The Beth Rachel students would be taught in classrooms only they may use; no public school students would be taught either in those classes or in those rooms. Yiddish would be spoken in the Beth Rachel classes. Only Hasidic girls would be taught; those girls would be allowed no contact with boys. Only female teachers would teach the Hasidic girls. And where once there was an open corridor allowing freedom to traverse the entire hall, there are now a wall and doors partitioning the Beth Rachel girls from the public school students.
In keeping with their general separatist beliefs, the Hasidim have expressed a desire to keep their children separate. As quoted in Part I.A. above, they are reported as seeing Hispanics as "different" and "not a good influence on [the Hasidic] girls," and as believing that educating Hasidic children in the company of Hispanic children would "corrupt[ ]" the Hasidic children. The lengths to which the City has gone to cater to these religious views, which are inherently divisive, are plainly likely to be perceived, by the Hasidim and others, as governmental support for the separatist tenets of the Hasidic faith. Worse still, to impressionable young minds, the City's Plan may appear to endorse not only separatism, but the derogatory rationale for separatism expressed by some of the Hasidim.
We are unpersuaded by the City's argument that the P.S. 16 Plan is validated by the fact that the City perceives a need, on a citywide basis, to conduct separate remedial classes for public and parochial school students in order to encourage the participation of the latter. The details of the City's Chapter 1 programs in other areas of the city are not in the record, and except for the representation that separate classes are conducted for public and private school students, we have no information as to the extent to which plans in different areas may vary. We note, however, that much as we have been told that separate classes are a standard feature, the City has never stated that in other areas of the city the remedial classes for the private school students are to be segregated along lines of gender of students and teachers, or that care is taken to assign only bilingual teachers to teach the parochial school students, or that partitions have been built to separate the parochial school students from the public school students. Hence, we doubt that the characteristics of the Plan that are most conducive to a perception of City endorsement of Hasidic religious tenets are common throughout the city. And were those or similarly divisive symbolic characteristics common to the citywide plan, we would hardly think the pervasiveness of the practice a basis for approving it.
Nor do we agree with the district court's view that the plaintiffs' injunction motion "ask[ed] the court in effect to force the Hassidic children to give up [their] sincere religious belief[s]." The Free Exercise Clause of the First Amendment ("Congress shall make no law ... prohibiting the free exercise [of religion]") does not prohibit a
We conclude that Parents plainly demonstrated the likelihood that they would succeed in establishing at trial that the City's Plan failed to pass the "primary effect" test and therefore violated their rights under the Establishment Clause. Since "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury," Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976), Parents were entitled to a preliminary injunction preventing implementation of the Plan. The district court's failure to properly apply the above First Amendment principles to grant the injunction constituted an abuse of discretion.
Finally, we note that the lengths to which the City has gone to accommodate Hasidic beliefs may well lead the trial court to conclude that the Plan violates the First Amendment under the "excessive entanglement" test as well as under the "primary effect" test. This Court, however, having concluded that Parents were entitled to preliminary injunctive relief on the basis of the latter, need not decide whether they also showed a likelihood of success under the former. The issue of entanglement, along with other constitutional and statutory claims asserted by Parents, remain open for adjudication in the trial on the merits. We are confident that that trial will not be delayed.
The order of the district court denying plaintiffs' motion for a preliminary injunction is reversed.