Good News Club v. Milford Central School, Continued

Case Analysis
Milford argues the case as if the Good News Club were seeking to have the school institutionally conduct religious instruction or prayer activities on its grounds. Indeed, the school posits that there "is essentially no qualitative difference" between this case and People of the State of Illinois, ex. rel. McCollum v. Board of Educ., 333 U.S. 203 (1948) (invalidating the use of public school classrooms during the regular school day for religion classes taught by outside religious instructors). Milford relies on Engel v. Vitale, 370 U.S. 421 (1962) (preventing public schools from composing prayers for student recitation); School Dist. of Abington Township v. Schempp, 374 U.S. 203 (1963) (finding mandatory Bible reading in a public school unconstitutional); Lee v. Weisman, 505 U.S. 577 (1992) (finding a middle school principal's invitation to a rabbi to pray at graduation unconstitutional); and Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000) (invalidating school election policies that implicitly favored prayer at a school-sponsored football game). To Milford, these precedents, and those like them, require the Good News Club’s exclusion in this case.

Asserts Milford: "to prohibit the reading of the Ten Commandments over the loud speaker, in the morning, while students are assembled, but permit the reading of the Ten Commandments to students only minutes after the end of the school day while students are still assembled [would be incongruous]."

The approving parents and student Club members think Milford has mischaracterized the issue at its core. Fundamentally, they argue, McCollum and the Bible-reading and prayer cases involve government encouragement or endorsement of religious practice, which the establishment clause forbids, while the voluntary gathering of the Good News Club in Milford’s classroom after school hours implicates private speech and religious exercise, which the free speech and free exercise clauses protect. To the Good News Club, this case is necessarily governed by Lamb's Chapel v. Center Moriches School Dist., 508 U.S. 384 (1993) (finding it improper to exclude access to available school facilities after hours on the basis of religious viewpoint). The Club participants write: "The Club's speech deserves the same First Amendment protection as a church's speech urging that parents return to Christian family values. Lamb's Chapel is squarely on point and thus controls this case."

Curiously, the Second Circuit declined to address or even cite Lamb’s Chapel, even though the Good News Club expressly relied upon that precedent in its briefing and argument. Indeed, the dissent expressly stated that it could not "square the majority's analysis in this case with Lamb's Chapel." 202 F.3d at 513.

Milford obviously disagrees. Lamb's Chapel, say the school authorities, did not consider the particular issue contested here - namely, whether religious instruction could be banned from a public school after hours. 508 U.S. at 389 n.2. Instead, the school characterizes the Court’s earlier holding as merely addressing whether a film with a religious viewpoint regarding families could be prohibited when other family discussion was permitted.

Whether Lamb's Chapel applies in this case turns on whether the lower court was right to attempt to differentiate religious perspectives from religious instruction. Milford contends that "it is not a difficult task for school districts to determine whether a certain activity is 'quintessentially religious.'" It cites, among other cases, Lemon v. Kurtzman, 403 U.S. 602, 619 (1971), for the proposition that "school officials must make 'certain that ... subsidized teachers do not inculcate religion,'" and Peloza v. Capistrano Unified School District, 37 F. 3d 517 (9th Cir. 1994), for the rule that it is proper for a school district to prohibit a teacher from discussing his religious beliefs with students "during the school day on school grounds."

To the Good News Club, the attempt to differentiate "religious" from "moral" instruction is a "semantic shell game." Citing the Court's earlier decision in Widmar v. Vincent, 454 U.S. 263 (1981), a case that insured equal access for religious groups in a university setting, the Club argues that such "distinctions between religious speech and religious worship lack 'intelligible content.'" Id. at 269 n. 6. Worse, argue the Club members, the inquiry is deeply intrusive, allowing public officials to probe into private matters of conscience protected by the Constitution. In this litigation, the school asked the students in the Club whether they prayed, what the nature of their prayers were, and "what specifically [they were] praying for." Under Milford's argument, submits the Club, "school administrators must become theological authorities and federal courts will become a battleground for theological disputes. The Constitution forbids this."

Unsurprisingly, the parties also refer to Rosenberger v. Rector, 515 U.S. 819 (1995) , in which the Supreme Court held that a distinctly Christian student newspaper could not be excluded from a general student activity fund. In the Club's words, the Rosenberger Court "rejected the proposition that speech with an evangelistic component occupies second-class status." Yet, Milford questions Rosenberger's relevance. " Rosenberger dealt with the issue of viewpoint discrimination while the present case deals with an Establishment Clause issue," the school contends.

Both sides agree that Milford's policies establish a "limited public forum." Nevertheless, in such a forum, insists Milford, distinctions based upon content and subject matter are permitted. Moreover, here “the record established that the decision of Milford was based entirely upon consideration of the content of the speech, not its viewpoint.” But drawing subject matter distinctions raises yet another Lamb's Chapel issue for Milford -- specifically, whether it, as the governmental actor, must establish a "compelling" justification in order to exclude privately expressed religious activity after school hours. Milford does not concede the applicability of this heightened standard of review, but it insists it has met whatever standard is applicable.

The Good News Club concedes that in a limited public forum, “government may ordinarily limit eligibility to the forum to a certain category of speakers or subjects.” And while the Club sees the government’s burden of exclusion as subject to strict scrutiny, the participating parents and students say it is in any event “arbitrary and subjective” for the government to recast its viewpoint exclusion as a subject matter limitation. The appropriate test under the Supreme Court's forum analysis, reasons the Good News Club, is simply “whether the speech fits within the subject matter allowed in the forum.” The Club insists that its religiously based program fits comfortably, since the school permits a wide range of groups -- the Boy Scouts, Girl Scouts and 4-H Club, for example -- to address the moral formation of young people. “Milford has communicated to members of the Good News Club that they and they alone are unwelcome because of their Christian beliefs.”

Milford responds that its limited public forum is governed by New York's education law, which excludes commercial speech, political activity, sexually explicit behavior and purely religious instruction. And, insists Milford, “there was no evidence in the record that explains what character education was actually provided by the Boy Scouts or Cub Scouts.” Milford further presses that “the age and relative inability of elementary age children to make the subtle distinctions necessary to discern who is and who is not an official of the school district" is a rational, if not compelling, basis to exclude the Club. “Viewpoint discrimination,” contends the school, is permissible when there is “overriding Establishment Clause concerns.”


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