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Published in Print: June 20, 2001, as Court Boosts School Access For Religious Groups

Court Boosts School Access For Religious Groups

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The U.S. Supreme Court last week unlocked public school doors for a potentially large array of religious groups, ruling that districts must give children's Bible clubs the same after-school access that other community groups get.

The justices ruled 6-3 on June 11 that the Milford, N.Y., school district had violated the free-speech rights of the Good News Club, an after-school Christian group for 6- to 12-year-olds. The district excluded the club from using its facilities after the school day, while allowing access to nonreligious groups such as the Boy Scouts and the 4-H Club.

"We find it quite clear that Milford engaged in viewpoint discrimination when it excluded the club from the after-school forum," Justice Clarence Thomas wrote in the majority opinion. The court further held that by allowing the religious club into its "limited public forum," the district would not violate the First Amendment's prohibition against a government establishment of religion.

Justice Thomas' opinion in Good News Club v. Milford Central School (Case No. 99-2036) was joined in full by Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy, while Justice Stephen G. Breyer joined in part.

Justices John Paul Stevens, David H. Souter, and Ruth Bader Ginsburg dissented.

Justice Souter, in an opinion joined by Justice Ginsburg, noted the heavily devotional nature of meetings of the Good News Club, one of hundreds across the country affiliated with a national organization, Child Evangelism Fellowship, that seeks to instill Christian beliefs in children as young as age 6.

"It is beyond question that Good News intends to use the public school premises not for the mere discussion of a subject from a particular, Christian point of view, but for an evangelical service of worship calling children to commit themselves in an act of Christian conversion," Justice Souter wrote.

Justice Stevens, in a separate dissenting opinion, called the case "undoubtedly close," adding "I am persuaded that the school district could (and did) permissibly exclude from its limited public forum proselytizing religious speech that does not rise to the level of actual worship."

Houses of Worship?

Advocates of greater tolerance of religion in the public schools hailed the decision, while public education groups and proponents of strict church- state separation expressed disappointment.

"Schools in the past have been nervous about letting religious groups use their facilities," said John W. Whitehead, the president of the Rutherford Institute. The Charlottesville, Va.- based organization helped represent the Good News Club of Milford in its legal battle with the local school district. "This ruling provides a real opportunity for them to be open."

Stuart J. Roth, a lawyer with the American Center for Law and Justice, said that "the court has now made it clear that there is no reason for excluding religious speakers from the marketplace of ideas." The Virginia Beach, Va.-based organization is affiliated with the religious broadcaster Pat Robertson.

Groups that had sided with the 530-student Milford school district in central New York expressed concern about the court's willingness to allow an evangelical club into elementary schools.

"We're concerned that children will get the impression that their houses of learning are now being transformed into houses of worship," said Jay Worona, general counsel of the New York State School Boards Association, which filed a friend- of-the-court brief in support of the Milford district.

Steven K. Green, the legal director of Americans United for Separation of Church and State, a Washington-based group that also filed a brief backing the district, said, "There is going to be peer pressure on children to attend these after- school clubs."

In the wake of the Supreme Court ruling, the Milford district is considering closing its lone K-12 school building to community groups, or else establishing a later time of day when groups would be permitted to use the facility, said Superintendent Peter N. Livshin.

Such a change would keep the Good News Club from meeting right after school, but would also require other groups that now use the building right after the school day, such as the 4-H Club, to delay their meetings as well, he said.

Limited Public Forum

The Milford case began when district administrators refused to allow the club to meet once a week in a classroom at Milford Central School. The club is run by the Rev. Stephen Fournier and his wife, Darleen, for about 20 children in the village. ("Religious Club Seeks 'Good News' From Court," Feb. 21, 2001.) In 1996, Mrs. Fournier requested the use of a room at the school for the club's weekly meeting. The district's then-superintendent refused, saying the club's activities were a form of religious worship and were prohibited under the district's community-use policy.

The family sued the district in 1997, and a federal district judge in Binghamton, N.Y., issued an injunction allowing the club to meet at Milford Central for most of the 1997-98 school year.

But in 1998, the judge ruled against the club on the merits of the case. The district had created a "limited public forum," the judge ruled, by opening its building for specific community uses. But it was not obligated to open the building for all speech, the judge said, adding that the district could legally exclude the subject category of religious instruction and prayer.

On appeal, a panel of the U.S. Court of Appeals for the 2nd Circuit, in New York City, ruled 2-1 last year for the school district.

In his opinion, Justice Thomas rejected concerns that the elementary-age children at Milford Central might feel coerced to participate in the club by its presence in the building. First, he noted, participation in the club required parental permission.

Moreover, he wrote, any danger that children might perceive the school was endorsing religion by allowing the club was not "any greater than the danger that they would perceive a hostility toward the religious viewpoint if the club were excluded from the public forum."

Justice Breyer's position in the case prompted debate among legal observers about where he stands on church-state issues. His concurrence was equivocal and suggested he had concerns about whether children might perceive that the school had endorsed the club. The lower courts did not fully explore the establishment-clause issues, he said.

Nevertheless, Justice Breyer's position solidifies his role as a swing vote on religion cases who, like Justice O'Connor, might go either way on the constitutionality of publicly funded tuition vouchers for religious school students in a future ruling by the high court on that still-unresolved question.

While he was once a reliable vote for maintaining a high wall of separation between church and state, Justice Breyer, an appointee of President Clinton's, voted with the court's conservatives last year to uphold the provision of computers and library books to private religious schools under a federal aid program known as Chapter 2.

He joined a concurring opinion by Justice O'Connor in that case indicating the two of them would not go as far, however, as the chief justice and Justices Kennedy, Scalia, and Thomas in approving other forms of direct government aid to religious schools. But that opinion left considerable room for interpretation on issues such as religious school vouchers.

"I think Breyer is sending a signal that he is a free agent and is not bound by characterizations of him as a liberal jurist," Mr. Green of Americans United said. "He's showing he's going to be an independent thinker on these issues, but I still believe he supports the court's basic older rulings on separation of church and state."

Most recent Supreme Court rulings on religion have sparked discussion about their implications for the constitutionality of religious school vouchers. The Good News Club case was no exception.

"I think it clearly helps vouchers," said Richard W. Garnett, an assistant professor at the University of Notre Dame law school. "You have five justices saying that for constitutional purposes, they're not going to treat [religion] in elementary schools differently from colleges and secondary schools."

Marc D. Stern, a lawyer with the American Jewish Congress and an opponent of religious school vouchers, agreed that the case gave a small boost to voucher supporters.

"The emergence of equal treatment for religion over nonreligion" among the court's conservative majority won't hurt the cause of vouchers, he said. "It helps them, but it is far from conclusive."

But Mr. Green argued that because the Good News case did not involve government aid to religion, the ruling means nothing for vouchers.

"Anyone who claims it does should get a crystal ball and start showing up at county fairs," he said.

Vol. 20, Issue 41, Pages 1,36

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