OCTOBER TERM, 2000
Syllabus
GOOD NEWS CL DB ET AL.
v. MILFORD CENTRAL SCHOOL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT
No. 99-2036. Argued February 28, 200l-Decided June 11,2001
Under New York law, respondent Milford Central School (Milford)
enacted a policy authorizing district residents to use its building
after school for, among other things, (1) instruction in education,
learning, or the arts and (2) social, civic, recreational, and
entertainment uses pertaining to the community welfare. Stephen and
Darleen Fournier, district residents eligible to use the school's
facilities upon approval of their proposed use, are sponsors of the
Good News Club, a private Christian organization for children ages
6 to 12. Pursuant to Milford's policy, they submitted a request to
hold the Club's weekly afterschool meetings in the school. Milford
denied the request on the ground that the proposed use-to sing
songs, hear Bible lessons, memorize scripture, and pray-was the
equivalent of religious worship prohibited by the community use
policy. Petitioners (collectively, the Club), filed suit under 42
U. S. C. § 1983, alleging,
inter alia, that the denial of
the Club's application violated its free speech rights under the
First and Fourteenth Amendments. The District Court ultimately
granted Milford summary judgment, finding the Club's subject matter
to be religious in nature, not merely a discussion of secular
matters from a religious perspective that Milford otherwise
permits. Because the school had not allowed other groups providing
religious instruction to use its limited public forum, the court
held that it could deny the Club access without engaging in
unconstitutional viewpoint discrimination. In affirming, the Second
Circuit rejected the Club's contention that Milford's restriction
was unreasonable, and held that, because the Club's subject matter
was quintessentially religious and its activities fell outside the
bounds of pure moral and character development, Milford's policy
was constitutional subject discrimination, not unconstitutional
viewpoint discrimination.
Held:
1. Milford violated the Club's free speech rights when it
excluded the Club from meeting after hours at the school. Pp.
106-112.
(a) Because the parties so agree, this Court assumes that
Milford operates a limited public forum. A State establishing such
a forum is not required to and does not allow persons to engage in
every type of
99
speech. It may be justified in reserving its forum for certain
groups or the discussion of certain topics.
E. g.,
Rosenberger v.
Rector and Visitors of Univ. of Va.,
515 U. S. 819,
829. The power to so restrict speech, however, is not without
limits. The restriction must not discriminate against speech based
on viewpoint,
ibid., and must be reasonable in light of the
forum's purpose,
Cornelius v.
NAACP Legal Defense
&
Ed. Fund, Inc., 473 U. S. 788,806. Pp.
106-107.
(b) By denying the Club access to the school's limited public
forum on the ground that the Club was religious in nature, Milford
discriminated against the Club because of its religious viewpoint
in violation of the Free Speech Clause. That exclusion is
indistinguishable from the exclusions held violative of the Clause
in
Lamb's Chapel v.
Center Moriches Union Free School
Dist., 508 U. S.
384, where a school district precluded a private group from
presenting films at the school based solely on the religious
perspective of the films, and in
Rosenberger, where a
university refused to fund a student publication because it
addressed issues from a religious perspective. The only apparent
difference between the activities of Lamb's Chapel and the Club is
the inconsequential distinction that the Club teaches moral lessons
from a Christian perspective through live storytelling and prayer,
whereas Lamb's Chapel taught lessons through films.
Rosenberger also is dispositive: Given the obvious religious
content of the publication there at issue, it cannot be said that
the Club's activities are any more "religious" or deserve any less
Free Speech Clause protection. This Court disagrees with the Second
Circuit's view 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. What matters for Free Speech Clause purposes
is that there is 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. Because Milford's restriction is
viewpoint discriminatory, the Court need not decide whether it is
unreasonable in light of the forum's purposes. Pp. 107-112.
2. Permitting the Club to meet on the school's premises would
not have violated the Establishment Clause. Establishment Clause
defenses similar to Milford's were rejected in
Lamb's Chapel,
supra, at 395-where the Court found that, because the films
would not have been shown during school hours, would not have been
sponsored by the school, and would have been open to the public,
not just to church members, there was no realistic danger that the
community would think that the district was endorsing religion-and
in
Widmar v.
Vincent, 454 U. S. 263, 272-273,
and n. 13-where a university's forum was
100
100 GOOD NEWS CLUB
v. MILFORD CENTRAL SCHOOL
Syllabus
already available to other groups. Because the Club's activities
are materially indistinguishable from those in
Lamb's Chapel
and
Widmar, Milford's reliance on the Establishment Clause
is unavailing. As in
Lamb's Chapel, the Club's meetings were
to be held after school hours, not sponsored by the school, and
open to any student who obtained parental consent, not just to Club
members. As in
Widmar, Milford made its forum available to
other organizations. The Court rejects Milford's attempt to
distinguish those cases by emphasizing that its policy involves
elementary school children who will perceive that the school is
endorsing the Club and will feel coerced to participate because the
Club's activities take place on school grounds, even though they
occur during nonschool hours. That argument is unpersuasive for a
number of reasons. (1) Allowing the Club to speak on school grounds
would ensure, not threaten, neutrality toward religion.
Accordingly, Milford faces an uphill battle in arguing that the
Establishment Clause compels it to exclude the Club. See,
e. g.,
Rosenberger, supra, at 839. (2) To the extent the Court
considers whether the community would feel coercive pressure to
engage in the Club's activities, cf.
Lee v.
Weisman,
505 U. S. 577,
592-593, the relevant community is the parents who choose whether
their children will attend Club meetings, not the children
themselves. (3) Whatever significance it may have assigned in the
Establishment Clause context to the suggestion that elementary
school children are more impressionable than adults, cf.,
e.
g., id., at 592, the Court has never foreclosed private religious
conduct during nonschool hours merely because it takes place on
school premises where elementary school children may be present.
Lee, supra, at 592, and
Edwards v.
Aguillard,
482 U. S. 578,
584, distinguished. (4) Even if the Court were to consider the
possible misperceptions by schoolchildren in deciding whether there
is an Establishment Clause violation, the facts of this case simply
do not support Milford's conclusion. Finally, it cannot be said
that the danger that children would misperceive the endorsement of
religion is any greater than the danger that they would perceive a
hostility toward the religious viewpoint if the Club were excluded
from the public forum. Because it is not convinced that there is
any significance to the possibility that elementary school children
may witness the Club's activities on school premises, the Court can
find no reason to depart from
Lamb's Chapel and
Widmar. Pp. 112-119.
3. Because Milford has not raised a valid Establishment Clause
claim, this Court does not address whether such a claim could
excuse Milford's viewpoint discrimination. Pp. 113, 120.
202 F.3d
502, reversed and remanded.
101
THOMAS, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, SCALIA, and KENNEDY, JJ., joined,
and in which BREYER, JJ., joined in part. SCALIA, J., filed a
concurring opinion,
post, p. 120. BREYER, J., filed an
opinion concurring in part,
post, p. 127. STEVENS, J., filed
a dissenting opinion,
post, p. 130. SOUTER, J., filed a
dissenting opinion, in which GINSBURG, J., joined,
post, p.
134.
Thomas Marcelle argued the cause for petitioners. With
him on the briefs were
John W Whitehead and
Steven H.
Aden.
Frank W Miller argued the cause for respondent. With him
on the brief were
Benjamin J.
Ferrara and
Norman
H. Gross.*
*Briefs of
amici curiae urging reversal were filed for
the State of Alabama et al. by
Bill Pryor, Attorney General
of Alabama,
Margaret L. Fleming, John J.
Park, Jr.,
and
Charles B. Campbell, Assistant Attorneys General, and by
the Attorneys General for their respective States as follows:
Thomas J.
Miller of Iowa,
Richard P. Ieyoub of
Louisiana,
Mike Moore of Mississippi,
Don Stenberg of
Nebraska,
Betty D. Montgomery of Ohio,
Charles M.
Condon of South Carolina,
Paul G.
Summers of
Tennessee,
John Cornyn of Texas,
Jan Graham of Utah,
and
Mark L. Earley of Virginia; for the American Center for
Law & Justice et al. by
Jay Alan Sekulow, Colby M. May,
James M. Henderson, Sr., Walter M. Weber, Paul D. Clement, and
Jeffrey S.
Bucholtz; for Child Evangelism Fellowship,
Inc., et al. by
Herbert G.
Grey, Darren C.
Walker,
Gregory S.
Baylor, and
Kimberlee Wood Colby; for
the Christian Legal Society et al. by
Carl H. Esbeck and
Nathan J.
Diament; for the Liberty Legal Institute by
Viet D. Dinh, John L. Carter, and
Kelly Shackelford;
for the National Council of Churches et al. by
Carter G.
Phillips, Gene C.
Schaerr, and
Nicholas P.
Miller; for the National Jewish Commission on Law and Public
Affairs by
Nathan Lewin, Dennis Rapps, and
David
Zwiebel; for the Northstar Legal Center et al. by
Jordan W
Lorence and
Joseph Infranco; for the Solidarity Center
for Law and Justice, P.
C., by
James P. Kelly III;
for Wallbuilders, Inc., by
Barry C.
Hodge; for Sally
Campbell by
Brett M. Kavanaugh and
Stuart J.
Roth; for Carol Hood by
Kevin J.
Hasson, Eric W
Treene, Roman P. Storzer, and
Anthony R. Picarello, Jr.;
for Douglas Laycock by
Mr. Laycock, pro se; and for 20
Theologians and Scholars of Religion by
Michael W McConnell
and
Steffen N. Johnson.
Briefs of
amici curiae urging affirmance were filed for
the American Jewish Congress by
Mark D. Stern; for Americans
United for Separation
102
102 GOOD NEWS CLUB
v. MILFORD CENTRAL SCHOOL
JUSTICE THOMAS delivered the opinion of the Court.
This case presents two questions. The first question is whether
Milford Central School violated the free speech rights of the Good
News Club when it excluded the Club from meeting after hours at the
school. The second question is whether any such violation is
justified by Milford's concern that permitting the Club's
activities would violate the Establishment Clause. We conclude that
Milford's restriction violates the Club's free speech rights and
that no Establishment Clause concern justifies that violation.
I
The State of New York authorizes local school boards to adopt
regulations governing the use of their school facilities. In
particular, N. Y. Educ. Law § 414 (McKinney 2000) enumerates
several purposes for which local boards may open their schools to
public use. In 1992, respondent Milford Central School (Milford)
enacted a community use policy adopting seven of § 414's purposes
for which its building could be used after school. App. to Pet. for
Cert. D1-D3. Two of the stated purposes are relevant here. First,
district residents may use the school for "instruction in any
branch of education, learning or the arts."
Id., at Dl.
Second, the school is available 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."
Ibid.
of Church and State et al. by Ayesha N. Khan, Steven K. Green,
Steven R. Shapiro, Jerome J. Shestack, Jeffrey P. Sinensky, Eddie
Tabash, Arthur N. Eisenberg, and Judith E. Schaeffer; for the
Anti-Defamation League et al. by Jeffrey R. Babbin, David B.
Isbell, Martin E. Karlinsky, and Steven M. Freeman; for the
National School Boards Association et al. by Julie K. Underwood;
and for the New York State School Boards Association, Inc., by Jay
Worona, Pilar Sokol, and John A. Miller.
103
Stephen and Darleen Fournier reside within Milford's district
and therefore are eligible to use the school's facilities as long
as their proposed use is approved by the school. Together they are
sponsors of the local Good News Club, a private Christian
organization for children ages 6 to 12. Pursuant to Milford's
policy, in September 1996 the Fourniers submitted a request to Dr.
Robert McGruder, interim superintendent of the district, in which
they sought permission to hold the Club's weekly afterschool
meetings in the school cafeteria. App. in No. 98-9494 (CA2), p.
A-81. The next month, McGruder formally denied the Fourniers'
request on the ground that the proposed use-to have "a fun time of
singing songs, hearing a Bible lesson and memorizing scripture,"
ibid.-was "the equivalent of religious worship." App. Hl-H2.
According to McGruder, the community use policy, which prohibits
use "by any individual or organization for religious purposes,"
foreclosed the Club's activities. App. to Pet. for Cert. D2.
In response to a letter submitted by the Club's counsel,
Milford's attorney requested information to clarify the nature of
the Club's activities. The Club sent a set of materials used or
distributed at the meetings and the following description of its
meeting:
"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." App. in No. 98-9494 (CA2), at A-30.
McGruder and Milford's attorney reviewed the materials and
concluded that "the kinds of activities proposed to be
104
engaged in by the Good News Club were not a discussion of
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.,
at A-25. In February 1997, the Milford Board of Education adopted a
resolution rejecting the Club's request to use Milford's facilities
"for the purpose of conducting religious instruction and Bible
study."
Id., at A-56.
In March 1997, petitioners, the Good News Club, Ms. Fournier,
and her daughter Andrea Fournier (collectively, the Club), filed an
action under Rev. Stat. § 1979, 42 U. S. C. § 1983, against Milford
in the United States District Court for the Northern District of
New York. The Club alleged that Milford's denial of its application
violated its free speech rights under the First and Fourteenth
Amendments, its right to equal protection under the Fourteenth
Amendment, and its right to religious freedom under the Religious
Freedom Restoration Act of 1993, 107 Stat. 1488,42 U. S. C. §
2000bb
et seq.l
The Club moved for a preliminary injunction to prevent the
school from enforcing its religious exclusion policy against the
Club and thereby to permit the Club's use of the school facilities.
On April 14, 1997, the District Court granted the injunction. The
Club then held its weekly afterschool meetings from April 1997
until June 1998 in a high school resource and middle school special
education room. App. N12.
In August 1998, the District Court vacated the preliminary
injunction and granted Milford's motion for summary judgment. 21 F.
Supp. 2d 147 (NDNY 1998). The court found that the Club's "subject
matter is decidedly religious in nature, and not merely a
discussion of secular matters
1 The District Court dismissed the Club's claim under the
Religious Freedom Restoration Act because we held the Act to be
unconstitutional in
City of Boerne v.
Flores,
521 U. S. 507
(1997). See 21 F. Supp. 2d 147, 150, n. 4 (NDNY 1998).
105
from a religious perspective that is otherwise permitted under
[Milford's] use policies."
Id., at 154. Because the school
had not permitted other groups that provided religious instruction
to use its limited public forum, the court held that the school
could deny access to the Club without engaging in unconstitutional
viewpoint discrimination. The court also rejected the Club's equal
protection claim.
The Club appealed, and a divided panel of the United States
Court of Appeals for the Second Circuit affirmed.
202 F.3d
502 (2000). First, the court rejected the Club's contention
that Milford's restriction against allowing religious instruction
in its facilities is unreasonable. Second, it held that, because
the subject matter of the Club's activities is "quintessentially
religious," id., at 510, and the activities "fall outside the
bounds of pure 'moral and character development,'" id., at 511,
Milford's policy of excluding the Club's meetings was
constitutional subject discrimination, not unconstitutional
viewpoint discrimination. Judge Jacobs filed a dissenting opinion
in which he concluded that the school's restriction did constitute
viewpoint discrimination under
Lamb's Chapel v.
Center
Moriches Union Free School Dist., 508 U. S. 384 (1993).
There is a conflict among the Courts of Appeals on the question
whether speech can be excluded from a limited public forum on the
basis of the religious nature of the speech. Compare
Gentala
v.
Tucson, 244 F.3d
1065 (CA9 2001) (en banc) (holding that a city properly
refused National Day of Prayer organizers' application to the
city's civic events fund for coverage of costs for city services);
Campbell v.
St. Tammany's School Bd., 206 F.3d
482 (CA5 2000) (holding that a school's policy against
permitting religious instruction in its limited public forum did
not constitute viewpoint discrimination), cert. pending, No.
00-1194;*
Bronx Household of Faith v.
Community School
Dist. No. 10, 127 F.3d
207 (CA2 1997) (concluding that a ban on religious services
and
*[REPORTER'S NOTE: See
post, p. 913.]
106
instruction in the limited public forum was constitutional),
with
Church on the Rock v.
Albuquerque, 84 F.3d
1273 (CAlO 1996) (holding that a city's denial of permission to
show the film Jesus in a senior center was unconstitutional
viewpoint discrimination); and
Good News/Good Sports Club v.
School Dist. of Ladue, 28 F.3d
1501 (CA8 1994) (holding unconstitutional a school use
policy that prohibited Good News Club from meeting during times
when the Boy Scouts could meet). We granted certiorari to resolve
this conflict. 531 U. S. 923 (2000).
II
The standards that we apply to determine whether a State has
unconstitutionally excluded a private speaker from use of a public
forum depend on the nature of the forum. See
Perry Ed. Assn.
v.
Perry Local Educators' Assn., 460 U. S. 37, 44 (1983).
If the forum is a traditional or open public forum, the State's
restrictions on speech are subject to stricter scrutiny than are
restrictions in a limited public forum.
Id., at 45-46. We
have previously declined to decide whether a school district's
opening of its facilities pursuant to N. Y. Educ. Law § 414 creates
a limited or a traditional public forum. See
Lamb's Chapel,
supra, at 391-392. Because the parties have agreed that Milford
created a limited public forum when it opened its facilities in
1992, see Brief for Petitioners 15-17; Brief for Respondent 26, we
need not resolve the issue here. Instead, we simply will assume
that Milford operates a limited public forum.
When the State establishes a limited public forum, the State is
not required to and does not allow persons to engage in every type
of speech. The State may be justified "in reserving [its forum] for
certain groups or for the discussion of certain topics."
Rosenberger v.
Rector and Visitors of Univ. of Va.,
515 U. S. 819,
829 (1995); see also
Lamb's Chapel, supra, at 392-393. The
State's power to restrict speech, however, is not without limits.
The restriction must not discriminate against speech on the basis
of viewpoint,
107
Rosenberger, supra, at 829, and the restriction must be
"reasonable in light of the purpose served by the forum,"
Cornelius v.
NAACP Legal Defense &
Ed. Fund,
Inc., 473 U. S.
788, 806 (1985).
III
Applying this test, we first address whether the exclusion
constituted viewpoint discrimination. We are guided in our analysis
by two of our prior opinions,
Lamb's Chapel and
Rosenberger. In
Lamb's Chapel, we held that a school
district violated the Free Speech Clause of the First Amendment
when it excluded a private group from presenting films at the
school based solely on the films' discussions of family values from
a religious perspective. Likewise, in
Rosenberger, we held
that a university's refusal to fund a student publication because
the publication addressed issues from a religious perspective
violated the Free Speech Clause. Concluding that Milford's
exclusion of the Good News Club based on its religious nature is
indistinguishable from the exclusions in these cases, we hold that
the exclusion constitutes viewpoint discrimination. Because the
restriction is viewpoint discriminatory, we need not decide whether
it is unreasonable in light of the purposes served by the
forum.2
2 Although Milford argued below that, under § 414, it could not
permit its property to be used for the purpose of religious
activity, see Brief for Appellee in No. 98-9494 (CA2), p. 12, here
it merely asserts in one sentence that it has, "in accordance with
state law, closed [its] limited open forum to purely religious
instruction and services," Brief for Respondent 27. Because Milford
does not elaborate, it is difficult to discern whether it is
arguing that it is required by state law to exclude the Club's
activities.
Before the Court of Appeals, Milford cited
Trietley v.
Board of Ed. of Buffalo, 65 App. Div. 2d 1,409 N. Y. S. 2d
912 (1978), in which a New York court held that a local school
district could not permit a student Bible club to meet on school
property because "[r]eligious purposes are not included in the
enumerated purposes for which a school may be used under section
414 of the Education Law."
Id., at 5-6, 409 N. Y. S. 2d,
108
108 GOOD NEWS CLUB
v. MILFORD CENTRAL SCHOOL
Milford has opened its limited public forum to activities that
serve a variety of purposes, including events "pertaining to the
welfare of the community." App. to Pet. for Cert. Dl. Milford
interprets its policy to permit discussions of subjects such as
child rearing, and of "the development of character and morals from
a religious perspective." Brief for Appellee in No. 98-9494 (CA2),
p. 6. For example, this policy would allow someone to use Aesop's
Fables to teach children moral values. App. Nil. Additionally, a
group could sponsor a debate on whether there should be a
constitutional amendment to permit prayer in public schools, id.,
at N6, and the Boy Scouts could meet "to influence a boy's
character, development and spiritual growth," id., at NiO-Nil. In
short, any group that "promote[s] the moral and character
development of children" is eligible to use the school building.
Brief for Appellee in No. 98-9494 (CA2), at 9.
Just as there is no question that teaching morals and character
development to children is a permissible purpose under Milford's
policy, it is clear that the Club teaches morals and character
development to children. For example, no one disputes that the Club
instructs children to overcome feelings of jealousy, to treat
others well regardless of how they treat the children, and to be
obedient, even if it does so in a nonsecular way. Nonetheless,
because Milford found the Club's activities to be religious in
nature"the equivalent of religious instruction itself," 202 F. 3d,
at 507-it excluded the Club from use of its facilities.
at 915. Although the court conceded that the Bible clubs might
provide incidental secular benefits, it nonetheless concluded that
the school would have violated the Establishment Clause had it
permitted the club's activities on campus. Because we hold that the
exclusion of the Club on the basis of its religious perspective
constitutes unconstitutional viewpoint discrimination, it is no
defense for Milford that purely religious purposes can be excluded
under state law.
109
Applying
Lamb's Chapel,3 we find it quite clear that
Milford engaged in viewpoint discrimination when it excluded the
Club from the afterschool forum. In
Lamb's Chapel, the local
New York school district similarly had adopted § 414's "social,
civic or recreational use" category as a permitted use in its
limited public forum. The district also prohibited use "by any
group for religious purposes." 508 U. S., at 387. Citing this
prohibition, the school district excluded a church that wanted to
present films teaching family values from a Christian perspective.
We held that, because the films "no doubt dealt with a subject
otherwise permissible" under the rule, the teaching of family
values, the district's exclusion of the church was unconstitutional
viewpoint discrimination.
Id., at 394.
Like the church in
Lamb's Chapel, the Club seeks to
address a subject otherwise permitted under the rule, the teaching
of morals and character, from a religious standpoint. Certainly,
one could have characterized the film presentations in
Lamb's
Chapel as a religious use, as the Court of Appeals did,
Lamb's Chapel v.
Center Moriches Union Free School
Dist., 959 F.2d
381, 388-389
(CA2 1992). And one easily could conclude
that the films' purpose to instruct that "'society's slide toward
humanism ... can only be counterbalanced by a loving home where
Christian values are instilled from an early age,'" id., at 384,
was "quintessentially religious," 202 F. 3d, at 510. The only
apparent dif-
3 We find it remarkable that the Court of Appeals majority did
not cite
Lamb's Chapel, despite its obvious relevance to the
case. We do not necessarily expect a court of appeals to catalog
every opinion that reverses one of its precedents. Nonetheless,
this oversight is particularly incredible because the majority's
attention was directed to it at every turn. See,
e. g.,
202 F.3d
502, 513 (CA2 2000) (Jacobs, J., dissenting) ("I cannot square
the majority's analysis in this case with
Lamb's Chapel");
21 F. Supp. 2d, at 150; App. 09-011 (District Court stating "that
Lamb's Chapel and
Rosenberger pinpoint the critical
issue in this case"); Brief for Appellee in No. 98-9494 (CA2), at
36-39; Brief for Appellants in No. 98-9494 (CA2), pp. 15, 36.
110
ference 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. Thus, the exclusion of the Good News Club's
activities, like the exclusion of Lamb's Chapel's films,
constitutes unconstitutional viewpoint discrimination.
Our opinion in
Rosenberger also is dispositive. In
Rosenberger, a student organization at the University of
Virginia was denied funding for printing expenses because its
publication, Wide Awake, offered a Christian viewpoint. Just as the
Club emphasizes the role of Christianity in students' morals and
character, Wide Awake" 'challenge[d] Christians to live, in word
and deed, according to the faith they proclaim and ... encourage[d]
students to consider what a personal relationship with Jesus Christ
means.'" 515 U. S., at 826. Because the university "select[ed] for
disfavored treatment those student journalistic efforts with
religious editorial viewpoints," we held that the denial of funding
was unconstitutional.
Id., at 831. Although in
Rosenberger there was no prohibition on religion as a
subject matter, our holding did not rely on this factor. Instead,
we concluded simply that the university's denial of funding to
print Wide Awake was viewpoint discrimination, just as the school
district's refusal to allow Lamb's Chapel to show its films was
viewpoint discrimination.
Ibid. Given the obvious religious
content of Wide Awake, we cannot say that the Club's activities are
any more "religious" or deserve any less First Amendment protection
than did the publication of Wide Awake in
Rosenberger.
Despite our holdings in
Lamb's Chapel and
Rosenberger, the Court of Appeals, like Milford, believed
that its characterization of the Club's activities as religious in
nature
111
warranted treating the Club's activities as different in kind
from the other activities permitted by the school. See 202 F. 3d,
at 510 (the Club "is doing something other than simply teaching
moral values"). The "Christian viewpoint" is unique, according to
the court, because it contains an "additional layer" that other
kinds of viewpoints do not.
Id., at 509. That is, the Club
"is focused on teaching children how to cultivate their
relationship with God through Jesus Christ," which it characterized
as "quintessentially religious."
Id., at 510. With these
observations, the court concluded that, because the Club's
activities "fall outside the bounds of pure 'moral and character
development,'" the exclusion did not constitute viewpoint
discrimination.
Id., at 51lo
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. See 202 F. 3d, at 512 (Jacobs, J.,
dissenting) ("[W]hen the subject matter is morals and character, it
is quixotic to attempt a distinction between religious viewpoints
and religious subject matters"). 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. It is
apparent that the unstated principle of the Court of Appeals'
reasoning is its conclusion that any time religious instruction and
prayer are used to discuss morals and character, the discussion is
simply not a "pure" discussion of those issues. According to the
Court of Appeals, reliance on Christian principles taints moral and
character instruction in a way that other foundations for thought
or viewpoints do not. We, however, have never reached such a
conclusion. Instead, we reaffirm our holdings in
Lamb's
Chapel and
Rosen-
112
112 GOOD NEWS CLUB
v. MILFORD CENTRAL SCHOOL
berger 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.
Thus, we conclude that Milford's exclusion of the Club from use of
the school, pursuant to its community use policy, constitutes
impermissible viewpoint discrimination.4
IV
Milford argues that, even if its restriction constitutes
viewpoint discrimination, its interest in not violating the
Establishment Clause outweighs the Club's interest in gaining equal
access to the school's facilities. In other words, according to
Milford, its restriction was required to avoid violating the
Establishment Clause. We disagree.
We have said that a state interest in avoiding an Establishment
Clause violation "may be characterized as compelling," and
therefore may justify content-based discrimination.
4 Despite Milford's insistence that the Club's activities
constitute "religious worship," the Court of Appeals made no such
determination. It did compare the Club's activities to "religious
worship," 202 F. 3d, at 510, but ultimately it concluded merely
that the Club's activities "fall outside the bounds of pure 'moral
and character development,'" id., at 51lo In any event, we conclude
that the Club's activities do not constitute mere religious
worship, divorced from any teaching of moral values.
JUSTICE SOUTER'S recitation of the Club's activities is
accurate. See
post, at 137-138 (dissenting opinion). But in
our view, religion is used by the Club in the same fashion that it
was used by Lamb's Chapel and by the students in
Rosenberger: Religion is the viewpoint from which ideas are
conveyed. We did not find the
Rosenberger students' attempt
to cultivate a personal relationship with Christ to bar their claim
that religion was a viewpoint. And we see no reason to treat the
Club's use of religion as something other than a viewpoint merely
because of any evangelical message it conveys. According to JUSTICE
SOUTER, the Club's activities constitute "an evangelical service of
worship."
Post, at 138. Regardless of the label JUSTICE
SOUTER wishes to use, what matters is the substance of the Club's
activities, which we conclude are materially indistinguishable from
the activities in
Lamb's Chapel and
Rosenberger.
113
Widmar v.
Vincent, 454 U. S. 263, 271
(1981). However, it is not clear whether a State's interest in
avoiding an Establishment Clause violation would justify viewpoint
discrimination. See
Lamb's Chapel, 508 U. S., at 394-395
(noting the suggestion in
Widmar but ultimately not finding
an Establishment Clause problem). We need not, however, confront
the issue in this case, because we conclude that the school has no
valid Establishment Clause interest.
We rejected Establishment Clause defenses similar to Milford's
in two previous free speech cases,
Lamb's Chapel and
Widmar. In particular, in
Lamb's Chapel, we explained
that "[t]he showing of thee] film series would not have been during
school hours, would not have been sponsored by the school, and
would have been open to the public, not just to church members."
508 U. S., at 395. Accordingly, we found that "there would have
been no realistic danger that the community would think that the
District was endorsing religion or any particular creed."
Ibid. Likewise, in
Widmar, where the university's
forum was already available to other groups, this Court concluded
that there was no Establishment Clause problem. 454 U. S., at
272-273, and n. 13.
The Establishment Clause defense fares no better in this case.
As in
Lamb's Chapel, the Club's meetings were held after
school hours, not sponsored by the school, and open to any student
who obtained parental consent, not just to Club members. As in
Widmar, Milford made its forum available to other
organizations. The Club's activities are materially
indistinguishable from those in
Lamb's Chapel and
Widmar. Thus, Milford's reliance on the Establishment Clause
is unavailing.
Milford attempts to distinguish
Lamb's Chapel and
Widmar by emphasizing that Milford's policy involves
elementary school children. According to Milford, children will
perceive that the school is endorsing the Club and will feel
coercive pressure to participate, because the Club's activities
114
114 GOOD NEWS CLUB
v. MILFORD CENTRAL SCHOOL
take place on school grounds, even though they occur during non
school hours.5 This argument is unpersuasive.
First, we have held that "a significant factor in upholding
governmental programs in the face of Establishment Clause attack is
their
neutrality towards religion."
Rosenberger, 515
U. S., at 839 (emphasis added). See also
Mitchell v.
Helms, 530 U.
S. 793, 809 (2000) (plurality opinion) ("In distinguishing
between indoctrination that is attributable to the State and
indoctrination that is not, [the Court has] consistently turned to
the principle of
neutrality, upholding aid that is offered
to a broad range of groups or persons without regard to their
religion" (emphasis added)); id., at 838 (O'CONNOR, J., concurring
in judgment) ("[N]eutrality is an important reason for upholding
government-aid programs against Establishment Clause challenges").
Milford's implication that granting access to the Club would do
damage to the neutrality principle defies logic. For the "guarantee
of neutrality is respected, not offended, when the government,
following neutral criteria and evenhanded policies, extends
benefits to recipients whose ideologies and viewpoints, including
religious ones, are broad and diverse."
Rosenberger, supra,
at 839. The Good News Club seeks nothing more than to be treated
neutrally and given access to speak about the same topics as are
other groups. Because allowing the Club to speak on school grounds
would ensure neutrality, not threaten it, Milford faces an uphill
battle in arguing that the Establishment Clause compels it to
exclude the Good News Club.
5 It is worth noting that, although Milford repeatedly has
argued that the Club's meeting time directly after the schoolday is
relevant to its Establishment Clause concerns, the record does not
reflect any offer by the school district to permit the Club to use
the facilities at a different time of day. The superintendent's
stated reason for denying the applications was simply that the
Club's activities were "religious instruction." 202 F. 3d, at 507.
In any event, consistent with
Lamb's Chapel and
Widmar, the school could not deny equal access to the Club
for any time that is generally available for public use.
115
Second, to the extent we consider whether the community would
feel coercive pressure to engage in the Club's activities, cf.
Lee v.
Weisman, 505 U. S. 577, 592-593
(1992), the relevant community would be the parents, not the
elementary school children. It is the parents who choose whether
their children will attend the Good News Club meetings. Because the
children cannot attend without their parents' permission, they
cannot be coerced into engaging in the Good News Club's religious
activities. Milford does not suggest that the parents of elementary
school children would be confused about whether the school was
endorsing religion. Nor do we believe that such an argument could
be reasonably advanced.
Third, whatever significance we may have assigned in the
Establishment Clause context to the suggestion that elementary
school children are more impressionable than adults, cf.,
e. g.,
id., at 592;
School Dist. of Grand Rapids v.
Ball, 473 U.
S. 373, 390 (1985) (stating that "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"), we have never extended our Establishment Clause
jurisprudence to foreclose private religious conduct during
nonschool hours merely because it takes place on school premises
where elementary school children may be present.
None of the cases discussed by Milford persuades us that our
Establishment Clause jurisprudence has gone this far. For example,
Milford cites
Lee v.
Weisman for the proposition that
"there are heightened concerns with protecting freedom of
conscience from subtle coercive pressure in the elementary and
secondary public schools," 505 U. S., at 592. In
Lee,
however, we concluded that attendance at the graduation exercise
was obligatory.
Id., at 586. See also
Santa Fe
Independent School Dist. v.
Doe, 530 U. S. 290 (2000)
(holding the school's policy of permitting prayer at
116
116 GOOD NEWS CLUB
v. MILFORD CENTRAL SCHOOL
football games unconstitutional where the activity took place
during a school-sponsored event and not in a public forum). We did
not place independent significance on the fact that the graduation
exercise might take place on school premises,
Lee, supra, at
583. Here, where the school facilities are being used for a
nonschool function and there is no government sponsorship of the
Club's activities,
Lee is inapposite.
Equally un supportive is
Edwards v.
Aguillard,
482 U. S. 578
(1987), in which we held that a Louisiana law that proscribed the
teaching of evolution as part of the public school curriculum,
unless accompanied by a lesson on creationism, violated the
Establishment Clause. In
Edwards, we mentioned that students
are susceptible to pressure in the classroom, particularly given
their possible reliance on teachers as role models. See id., at
584. But we did not discuss this concern in our application of the
law to the facts. Moreover, we did note that mandatory attendance
requirements meant that state advancement of religion in a school
would be particularly harshly felt by impressionable students.6 But
we did not suggest that, when the school was not actually advancing
religion, the impressionability of students would be relevant to
the Establishment Clause issue. Even if Ed
wards had
articulated the principle Milford believes it did, the facts in
Edwards are simply too remote from those here
6 Milford also cites
Illinois ex rel. McCollum v.
Board of Ed. of School Dist. No. 71,
Champaign Cty.,
333 U. S. 203
(1948), for its position that the Club's religious element would be
advanced by the State through compulsory attendance laws. In
McCollum, the school district excused students from their
normal classroom study during the regular schoolday to attend
classes taught by sectarian religious teachers, who were subject to
approval by the school superintendent. Under these circumstances,
this Court found it relevant that "[t]he operation of the State's
compulsory education system ... assist[ed] and [wa]s integrated
with the program of religious instruction carried on by separate
religious sects."
Id., at 209. In the present case, there is
simply no integration and cooperation between the school district
and the Club. The Club's activities take place
after the
time when the children are compelled by state law to be at the
school.
117
to give the principle any weight.
Edwards involved the
content of the curriculum taught by state teachers
during the
schoolday to children required to attend. Obviously, when
individuals who are not schoolteachers are giving lessons after
school to children permitted to attend only with parental consent,
the concerns expressed in
Edwards are not present.7
Fourth, even if we were to consider the possible misperceptions
by schoolchildren in deciding whether Milford's permitting the
Club's activities would violate the Establishment Clause, the facts
of this case simply do not support Milford's conclusion. There is
no evidence that young children are permitted to loiter outside
classrooms after the schoolday has ended. Surely even young
children are aware of events for which their parents must sign
permission
7Milford also refers to
Board of Ed. of Westside Community
Schools (Dist. 66) v.
Mergens, 496 U. S. 226 (1990), to
support its view that "assumptions about the ability of students to
make ... subtle distinctions [between schoolteachers during the
schoolday and Reverend Fournier after school] are less valid for
elementary age children who tend to be less informed, more
impressionable, and more subject to peer pressure than average
adults." Brief for Respondent 19. Four Justices in
Mergens
believed that high school students likely are capable of
distinguishing between government and private endorsement of
religion. See 496 U. S., at 250-251 (opinion of O'CONNOR, J.). The
opinion, however, made no statement about how capable of discerning
endorsement elementary school children would have been in the
context of
Mergens, where the activity at issue was
after
school. In any event, even to the extent elementary school
children are more prone to peer pressure than are older children,
it simply is not clear what, in this case, they could be pressured
to do.
In further support of the argument that the impressionability of
elementary school children even after school is significant,
Milford points to several cases in which we have found
Establishment Clause violations in public schools. For example,
Milford relies heavily on
School Dist. of Abington Township
v.
Schempp, 374 U. S. 203 (1963), in
which we found unconstitutional Pennsylvania's practice of
permitting public schools to read Bible verses at the opening of
each schoolday.
Schempp, however, is inapposite because this
case does not involve activity by the school during the
schoolday.
118
118 GOOD NEWS CLUB
v. MILFORD CENTRAL SCHOOL
forms. The meetings were held in a combined high school resource
room and middle school special education room, not in an elementary
school classroom. The instructors are not schoolteachers. And the
children in the group are not all the same age as in the normal
classroom setting; their ages range from 6 to 12.8 In sum, these
circumstances simply do not support the theory that small children
would perceive endorsement here.
Finally, even if we were to inquire into the minds of
schoolchildren in this case, we cannot say the danger that children
would misperceive the endorsement of religion is any greater than
the danger that they would perceive a hostility toward the
religious viewpoint if the Club were excluded from the public
forum. This concern is particularly acute given the reality that
Milford's building is not used only for elementary school children.
Students, from kindergarten through the 12th grade, all attend
school in the same building. There may be as many, if not more,
upperclassmen as elementary school children who occupy the school
after hours. For that matter, members of the public writ large are
permitted in the school after hours pursuant to the community use
policy. Any bystander could conceivably be aware of the school's
use policy and its exclusion of the Good News Club, and could
suffer as much from viewpoint discrimination as elementary school
children could suffer from perceived endorsement. Cf.
Rosenberger, 515 U. S., at 835-836 (expressing the concern
that viewpoint discrimination can chill individual thought and
expression).
8 Milford also relies on the Equal Access Act, 98 Stat. 1302, 20
U. S. C. § § 4071-4074, as evidence that Congress has recognized
the vulnerability of elementary school children to misperceiving
endorsement of religion. The Act, however, makes no express
recognition of the impressionability of elementary school children.
It applies only to public secondary schools and makes no mention of
elementary schools. § 4071 (a). We can derive no meaning from the
choice by Congress not to address elementary schools.
119
We cannot operate, as Milford would have us do, under the
assumption that any risk that small children would perceive
endorsement should counsel in favor of excluding the Club's
religious activity. We decline to employ Establishment Clause
jurisprudence using a modified heckler's veto, in which a group's
religious activity can be proscribed on the basis of what the
youngest members of the audience might misperceive. Cf.
Capitol
Square Review and Advisory Bd. v.
Pinette, 515 U. S. 753, 779-780
(1995) (O'CONNOR, J., concurring in part and concurring in
judgment) ("[B]ecause our concern is with the political community
writ large, the endorsement inquiry is
not about the perceptions
of particular individuals or saving isolated nonadherents from
... discomfort .... It is for this reason that the reasonable
observer in the endorsement inquiry must be deemed aware of the
history and context of the community and forum in which the
religious [speech takes place]" (emphasis added)). There are
countervailing constitutional concerns related to rights of other
individuals in the community. In this case, those countervailing
concerns are the free speech rights of the Club and its members.
Cf.
Rosenberger, supra, at 835 ("Vital First Amendment
speech principles are at stake here"). And, we have already found
that those rights have been violated, not merely perceived to have
been violated, by the school's actions toward the Club.
We are not convinced that there is any significance in this case
to the possibility that elementary school children may witness the
Good News Club's activities on school premises, and therefore we
can find no reason to depart from our holdings in
Lamb's
Chapel and
Widmar. Accordingly, we conclude that
permitting the Club to meet on the school's premises would not have
violated the Establishment Clause.9
9 Both parties have briefed the Establishment Clause issue
extensively, and neither suggests that a remand would be of
assistance on this issue. Although JUSTICE SOUTER would prefer that
a record be developed on
120
120 GOOD NEWS CLUB
v. MILFORD CENTRAL SCHOOL
SCALIA, J., concurring
V
When Milford denied the Good News Club access to the school's
limited public forum on the ground that the Club was religious in
nature, it discriminated against the Club because of its religious
viewpoint in violation of the Free Speech Clause of the First
Amendment. Because Milford has not raised a valid Establishment
Clause claim, we do not address the question whether such a claim
could excuse Milford's viewpoint discrimination.
***
The judgment of the Court of Appeals is reversed, and the case
is remanded for further proceedings consistent with this
opinion.
It is so ordered.
JUSTICE SCALIA, concurring.
I join the Court's opinion but write separately to explain
further my views on two issues.
I
First, I join Part IV of the Court's OpInIOn, regarding the
Establishment Clause issue, with the understanding that its
consideration of coercive pressure, see
ante, at 115, and
perceptions of endorsement, see
ante, at 115, 117-118, "to
the extent" that the law makes such factors relevant,
several facts, see
post, at 140, and JUSTICE BREYER
believes that development of those facts could yet be dispositive
in this case, see
post, at 128 (opinion concurring in part),
none of these facts is relevant to the Establishment Clause
inquiry. For example, JUSTICE SOUTER suggests that we cannot
determine whether there would be an Establishment Clause violation
unless we know when, and to what extent, other groups use the
facilities. When a limited public forum is available for use by
groups presenting any viewpoint, however, we would not find an
Establishment Clause violation simply because only groups
presenting a religious viewpoint have opted to take advantage of
the forum at a particular time.
121
is consistent with the belief (which I hold) that in this case
that extent is zero. As to coercive pressure: Physical coercion is
not at issue here; and so-called "peer pressure," if it can even be
considered coercion, is, when it arises from private activities,
one of the attendant consequences of a freedom of association that
is constitutionally protected, see,
e. g., Roberts v.
United States Jaycees, 468 U. S. 609, 622
(1984); NAACP v.
Alabama ex rel. Patterson, 357 U. S. 449, 460-461
(1958). What is at play here is not coercion, but the compulsion of
ideas-and the private right to exert and receive that compulsion
(or to have one's children receive it) is
protected by the
Free Speech and Free Exercise Clauses, see,
e. g., Heffron
v.
International Soc. for Krishna Consciousness, Inc.,
452 U. S. 640,
647 (1981);
Murdock v.
Pennsylvania, 319 U. S. 105, 108-109
(1943);
Cantwell v.
Connecticut, 310 U. S. 296, 307-310
(1940), not banned by the Establishment Clause. A priest has as
much liberty to proselytize as a patriot.
As to endorsement, I have previously written that "[r]eligious
expression cannot violate the Establishment Clause where it (1) is
purely private and (2) occurs in a traditional or designated public
forum, publicly announced and open to all on equal terms."
Capitol Square Review and Advisory Bd. v.
Pinette,
515 U. S. 753,
770 (1995). The same is true of private speech that occurs in a
limited public forum, publicly announced, whose boundaries are not
drawn to favor religious groups but instead permit a cross-section
of uses. In that context, which is this case, "erroneous
conclusions [about endorsement] do not count."
Id., at 765.
See also
Lamb's Chapel v.
Center Moriches Union Free
School Dist., 508
U. S. 384, 401 (1993) (SCALIA, J., concurring in judgment) ("I
would hold, simply and clearly, that giving [a private religious
group] nondiscriminatory access to school facilities cannot violate
[the Establishment Clause] because it does not signify state or
local embrace of a particular religious sect").
122
122 GOOD NEWS CLUB
v. MILFORD CENTRAL SCHOOL
SCALIA, J., concurring
II
Second, since we have rejected the only reason that respondent
gave for excluding the Club's speech from a forum that clearly
included it (the forum was opened to any "us[e] pertaining to the
welfare of the community," App. to Pet. for Cert. D1), I do not
suppose it matters whether the exclusion is characterized as
viewpoint or subject-matter discrimination. Lacking
any
legitimate reason for excluding the Club's speech from its
forum-"because it's religious" will not do, see,
e. g., Church
of Lukumi Babalu Aye, Inc. v.
Hialeah, 508 U. S. 520, 532-533,
546 (1993);
Employment Div., Dept. of Human Resources of
Ore. v.
Smith, 494 U. S. 872, 877-878
(1990)-respondent would seem to fail First Amendment scrutiny
regardless of how its action is characterized. Even subject-matter
limits must at least be "reasonable in light of the purpose served
by the forum,"
Cornelius v.
NAACP Legal Defense &
Ed. Fund, Inc., 473 U. S. 788, 806
(1985).1 But I agree, in any event, that respondent did
discriminate on the basis of viewpoint.
As I understand it, the point of disagreement between the Court
and the dissenters (and the Court of Appeals)
1 In this regard, I should note the inaccuracy of JUSTICE
SOUTER'S claim that the reasonableness of the forum limitation is
not properly before us, see
post, at 136, and n. 1
(dissenting opinion). Petitioners argued, both in their papers
filed in the District Court, Memorandum of Law in Support of
Cross-Motion for Summary Judgment in No. 97-CV-0302 (NDNY), pp.
20-22, and in their brief filed on appeal, Brief for Appellants in
No. 98-9494 (CA2), pp. 33-35, that respondent's exclusion of them
from the forum was unreasonable in light of the purposes served by
the forum. Although the District Court did say in passing that the
reasonableness of respondent's general restriction on use of its
facilities for religious purposes was not challenged, see 21 F.
Supp. 2d 147, 154 (NDNY 1998), the Court of Appeals apparently
decided that the particular reasonableness challenge brought by
petitioners had been preserved, because it addressed the argument
on the merits, see
202 F.3d
502, 509 (CA2 2000) ("Taking first the reasonableness
criterion, the Club argues that the restriction is unreasonable
.... This argument is foreclosed by precedent").
123
with regard to petitioner's Free Speech Clause claim is not
whether the Good News Club must be permitted to present religious
viewpoints on morals and character in respondent's forum, which has
been opened to secular discussions of that subject, see
ante, at 108.2 The answer to that is established by our
decision in
Lamb's Chapel, supra. The point of disagreement
is not even whether
some of the Club's religious speech fell
within the protection of
Lamb's Chapel. It certainly did.
See
ante, at 108;
202 F.3d
502, 509
(CA2 2000) (the Club's "teachings may involve
secular values such as obedience or resisting jealousy").
The disagreement, rather, regards the portions of the Club's
meetings that are not "purely" "discussions" of morality and
character from a religious viewpoint. The Club, for example, urges
children "who already believe in the Lord Jesus as their Savior" to
"[s]top and ask God for the strength and the 'want' ... to obey
Him," 21 F. Supp. 2d 147, 156 (NDNY 1998) (internal quotation marks
omitted), and it invites children who "don't know Jesus as Savior"
to "trust the Lord Jesus to be [their] Savior from sin," ibid. The
dissenters and the Second Circuit say that the presence of such
additional speech, because it is purely religious, transforms the
Club's meetings into something different in kind from other,
nonreligious activities that teach moral and character development.
See
post, at 132-133 (STEVENS, J., dissenting);
post,
at 137-138 (SOUTER, J., dissenting); 202 F. 3d, at 509-511.
Therefore, the argument goes, excluding the Club is not viewpoint
discrimination. I disagree.
Respondent has opened its facilities to any "us[e] pertaining to
the welfare of the community, provided that such usee] shall be
nonexclusive and shall be opened to the general
2 Neither does the disagreement center on the mode of the Club's
speech-the fact that it sings songs and plays games. Although a
forum could perhaps be opened to lectures but not plays, debates
but not concerts, respondent has placed no such restrictions on the
use of its facilities. See App. N8, N14, N19 (allowing seminars,
concerts, and plays).
124
public." App. to Pet. for Cert. Dl. Shaping the moral and
character development of children certainly "pertain[s] to the
welfare of the community." Thus, respondent has agreed that groups
engaged in the endeavor of developing character may use its forum.
The Boy Scouts, for example, may seek "to influence a boy's
character, development and spiritual growth," App. N10-Nll; cf.
Boy Scouts of America v.
Dale, 530 U. S. 640, 649 (2000)
("[T]he general mission of the Boy Scouts is clear: '[t]o instill
values in young people'" (quoting the Scouts' mission statement)),
and a group may use Aesop's Fables to teach moral values, App. Nil.
When the Club attempted to teach Biblical-based moral values,
however, it was excluded because its activities "d[id] not involve
merely a religious perspective on the secular subject of morality"
and because "it [was] clear from the conduct of the meetings that
the Good News Club goes far beyond merely stating its viewpoint."
202 F. 3d, at 510.
From no other group does respondent require the sterility of
speech that it demands of petitioners. The Boy Scouts could
undoubtedly buttress their exhortations to keep "morally straight"
and live "clean" lives, see
Boy Scouts of America v.
Dale, supra, at 649, by giving
reasons why that is a
good idea-because parents want and expect it, because it will make
the scouts "better" and "more successful" people, because it will
emulate such admired past Scouts as former President Gerald Ford.
The Club, however, may only discuss morals and character, and
cannot give
its reasons why they should be fostered-because
God wants and expects it, because it will make the Club members
"saintly" people, and because it emulates Jesus Christ. The Club
may not, in other words, independently discuss the religious
premise on which its views are based-that God exists and His
assistance is necessary to morality. It may not defend the premise,
and it absolutely must not seek to persuade the children that the
premise is true. The children must, so to say, take it on faith.
This is blatant viewpoint dis-
125
crimination. Just as calls to character based on patriotism will
go unanswered if the listeners do not believe their country is good
and just, calls to moral behavior based on God's will are useless
if the listeners do not believe that God exists. Effectiveness in
presenting a viewpoint rests on the persuasiveness with which the
speaker defends his premise-and in respondent's facilities every
premise but a religious one may be defended.
In
Rosenberger v.
Rector and Visitors of Univ. of Va.,
515 U. S. 819 (1995), we struck down a similar viewpoint
restriction. There, a private student newspaper sought funding from
a student-activity fund on the same basis as its secular
counterparts. And though the paper printed such directly religious
material as exhortations to belief, see id., at 826 (quoting the
paper's self-described mission "'to encourage students to consider
what a personal relationship with Jesus Christ means' "); id., at
865 (SOUTER, J., dissenting) (" 'The only way to salvation through
Him is by confessing and repenting of sin. It is the Christian's
duty to make sinners aware of their need for salvation'" (quoting
the paper)); see also id., at 865-867 (quoting other examples), we
held that refusing to provide the funds discriminated on the basis
of viewpoint, because the religious speech had been used to
"provid[e] ... a specific premise ... from which a variety of
subjects may be discussed and considered," id., at 831 (opinion of
the Court). The right to present a viewpoint based on a religion
premise carried with it the right to defend the premise.
The dissenters emphasize that the religious speech used by the
Club as the foundation for its views on morals and character is not
just any type of religious speech-although they cannot agree
exactly what type of religious speech it is. In JUSTICE STEVENS'S
view, it is speech "aimed principally at proselytizing or
inculcating belief in a particular religious faith,"
post,
at 130; see also
post, at 133-134, n. 3. This does not, to
begin with, distinguish
Rosenberger, which
126
126 GOOD NEWS CLUB
v. MILFORD CENTRAL SCHOOL
SCALIA, J., concurring
also involved proselytizing speech, as the above quotations
show. See also
Rosenberger, supra, at 844 (referring
approvingly to the dissent's description of the paper as a "wor[k]
characterized by ... evangelism"). But in addition, it does not
distinguish the Club's activities from those of the other groups
using respondent's forum-which have not, as JUSTICE STEVENS
suggests, see
post, at 131-132, been restricted to
roundtable "discussions" of moral issues. Those groups may seek to
inculcate children with their beliefs, and they may furthermore
"recruit others to join their respective groups,"
post, at
131. The Club must therefore have liberty to do the same, even if,
as JUSTICE STEVENS fears without support in the record, see
ibid., its actions may prove (shudder!) divisive. See
Lamb's Chapel, 508 U. S., at 395 (remarking that worries
about "public unrest" caused by "proselytizing" are "difficult to
defend as a reason to deny the presentation of a religious point of
view"); cf.
Lynch v.
Donnelly, 465 U. S. 668, 684-685
(1984) (holding that "political divisiveness" could not invalidate
inclusion of creche in municipal Christmas display);
Cantwell v.
Connecticut, 310 U. S., at 310-311.
JUSTICE SOUTER, while agreeing that the Club's religious speech
"may be characterized as proselytizing,"
post, at 139, n. 3,
thinks that it is even more clearly excludable from respondent's
forum because it is essentially "an evangelical service of
worship,"
post, at 138. But we have previously rejected the
attempt to distinguish worship from other religious speech, saying
that "the distinction has [no] intelligible content," and further,
no
"relevance" to the constitutional issue.
Widmar v.
Vincent, 454
U. S. 263, 269, n. 6 (1981); see also
Murdock v.
Pennsylvania, 319 U. S., at 109 (refusing to distinguish
evangelism from worship).3 Those holdings
3 We
have drawn a different distinction-between religious
speech generally and speech about religion-but only with regard to
restrictions the State must place on its own speech, where
pervasive state monitoring is unproblematic. See
School Dist. of
Abington Township v.
Schempp,
127
are surely proved correct today by the dissenters' inability to
agree, even between themselves, into which subcategory of religious
speech the Club's activities fell. If the distinction did have
content, it would be beyond the courts' competence to administer.
Widmar v.
Vincent, supra, at 269, n. 6; cf.
Lee v.
Weisman, 505 U. S. 577, 616-617
(1992) (SOUTER, J., concurring) ("I can hardly imagine a subject
less amenable to the competence of the federal judiciary, or more
deliberately to be avoided where possible," than "comparative
theology"). And if courts (and other government officials) were
competent, applying the distinction would require state monitoring
of private, religious speech with a degree of pervasiveness that we
have previously found unacceptable. See,
e. g., Rosenberger
v.
Rector and Visitors of Univ. of Va., supra, at 844-845;
Widmar v.
Vincent, supra, at 269, n. 6. I will not
endorse an approach that suffers such a wondrous diversity of
flaws.
***
With these words of explanation, I join the opinion of the
Court.
JUSTICE BREYER, concurring in part.
I agree with the Court's conclusion and join its OpInIOn to the
extent that they are consistent with the following three
observations. First, the government's "neutrality" in respect to
religion is one, but only one, of the considerations relevant to
deciding whether a public school's policy violates the
Establishment Clause. See,
e. g., Mitchell v.
Helms,
530 U. S. 793, 839 (2000) (O'CONNOR, J., concurring in
judgment);
374 U. S. 203,
225 (1963) (State schools in their official capacity may not teach
religion but may teach about religion). Whatever the rule there,
licensing and monitoring private religious speech is an entirely
different matter, see,
e. g.,
Kunz v.
New
York, 340 U. S.
290, 293-294 (1951), even in a limited public forum where the
State has some authority to draw subject-matter distinctions.
128
128 GOOD NEWS CLUB
v. MILFORD CENTRAL SCHOOL
BREYER, J., concurring in part
Capitol Square Review and Advisory Bd. v.
Pinette,
515 U. S. 753, 774, 777 (1995) (O'CONNOR, J., concurring in
part and concurring in judgment). As this Court previously has
indicated, a child's perception that the school has endorsed a
particular religion or religion in general may also prove
critically important. See
School Dist. of Grand Rapids v.
Ball, 473 U.
S. 373, 389-390 (1985); see also
Lamb's Chapel v.
Center Moriches Union Free School Dist., 508 U. S. 384, 395
(1993);
County of Allegheny v.
American Civil Liberties
Union, Greater Pittsburgh Chapter, 492 U. S. 573, 592-594
(1989). Today's opinion does not purport to change that legal
principle.
Second, the critical Establishment Clause question here may well
prove to be whether a child, participating in the Good News Club's
activities, could reasonably perceive the school's permission for
the Club to use its facilities as an endorsement of religion. See
Ball, supra, at 390 ("[A]n important concern of the effects
test is whether ... the challenged government action is
sufficiently likely to be perceived by adherents of the controlling
denominations as an endorsement, and by the nonadherents as a
disapproval, of their individual religious choices"). The time of
day, the age of the children, the nature of the meetings, and other
specific circumstances are relevant in helping to determine
whether, in fact, the Club "so dominate[s]" the "forum" that, in
the children's minds, "a formal policy of equal access is
transformed into a demonstration of approval."
Capitol Square
Review and Advisory Bd., supra, at 777 (O'CONNOR, J.,
concurring in part and concurring in judgment).
Third, the Court cannot fully answer the Establishment Clause
question this case raises, given its procedural posture. The
specific legal action that brought this case to the Court of
Appeals was the District Court's decision to grant Milford Central
School's motion for summary judgment. The Court of Appeals affirmed
the grant of summary judgment. We now hold that the school was not
entitled to
129
summary judgment, either in respect to the Free Speech or the
Establishment Clause issue. Our holding must mean that,
viewing
the disputed facts (including facts about the children's
perceptions)
favorably to the Club (the nonmoving party),
the school has not shown an Establishment Clause violation.
To deny one party's motion for summary judgment, however, is not
to grant summary judgment for the other side. There may be disputed
"genuine issue[sJ" of "material fact," Fed. Rule Civ. Proc. 56(c),
particularly about how a reasonable child participant would
understand the school's role, cf.
post, at 140 (SOUTER, J.,
dissenting). Indeed, the Court itself points to facts not in
evidence,
ante, at 117 ("There is no evidence that young
children are permitted to loiter outside classrooms after the
schoolday has ended"),
ante, at 118 ("There may be as many,
if not more, upperclassmen as elementary school children who occupy
the school after hours"), identifies facts in evidence which may,
depending on other facts not in evidence, be of legal significance,
ibid. (discussing the type of room in which the meetings
were held and noting that the Club's participants "are not all the
same age as in the normal classroom setting"), and makes
assumptions about other facts,
ante, at 117-118 ("Surely
even young children are aware of events for which their parents
must sign permission forms"),
ante, at 118 ("Any bystander
could conceivably be aware of the school's use policy and its
exclusion of the Good News Club, and could suffer as much from
viewpoint discrimination as elementary school children could suffer
from perceived endorsement"). The Court's invocation of what is
missing from the record and its assumptions about what is present
in the record only confirm that both parties, if they so desire,
should have a fair opportunity to fill the evidentiary gap in light
of to day's opinion. Cf. Fed. Rules Civ. Proc. 56(c) (summary
judgment appropriate only where there is "no genuine issue as to
any material fact" and movant "is entitled to a judgment as a
130
130 GOOD NEWS CLUB
v. MILFORD CENTRAL SCHOOL
STEVENS, J., dissenting
matter of law"), 56(f) (permitting supplementation of record for
summary judgment purposes where appropriate).
JUSTICE STEVENS, dissenting.
The Milford Central School has invited the public to use its
facilities for educational and recreational purposes, but not for
"religious purposes." Speech for "religious purposes" may
reasonably be understood to encompass three different categories.
First, there is religious speech that is simply speech about a
particular topic from a religious point of view. The film in
Lamb's Chapel v.
Center Moriches Union Free School
Dist., 508 U. S.
384 (1993), illustrates this category. See id., at 388
(observing that the film series at issue in that case "would
discuss Dr. [James] Dobson's views on the undermining influences of
the media that could only be counterbalanced by returning to
traditional, Christian family values instilled at an early stage").
Second, there is religious speech that amounts to worship, or its
equivalent. Our decision in
Widmar v.
Vincent,
454 U. S. 263
(1981), concerned such speech. See id., at 264-265 (describing the
speech in question as involving "religious worship"). Third, there
is an intermediate category that is aimed principally at
proselytizing or inculcating belief in a particular religious
faith.
A public entity may not generally exclude even religious worship
from an open public forum.
Id., at 276. Similarly, a public
entity that creates a limited public forum for the discussion of
certain specified topics may not exclude a speaker simply because
she approaches those topics from a religious point of view. Thus,
in
Lamb's Chapel we held that a public school that permitted
its facilities to be used for the discussion of family issues and
child rearing could not deny access to speakers presenting a
religious point of view on those issues. See 508 U. S., at
393-394.
But, while a public entity may not censor speech about an
authorized topic based on the point of view expressed
131
by the speaker, it has broad discretion to "preserve the
property under its control for the use to which it is lawfully
dedicated."
Greer v.
Spock, 424 U. S. 828, 836
(1976); see also
Board of Ed. of Westside Community Schools
(Dist. 66) v.
Mergens, 496 U. S. 226, 275, n. 6
(1990) (STEVENS, J., dissenting) ("A school's extracurricular
activities constitute a part of the school's teaching mission, and
the school accordingly must make 'decisions concerning the content
of those activities'" (quoting
Widmar, 454 U. S., at 278
(STEVENS, J., concurring in judgment)). Accordingly, "control over
access to a nonpublic forum can be based on subject matter and
speaker identity so long as the distinctions drawn are reasonable
in light of the purpose served by the forum and are viewpoint
neutral."
Cornelius v.
NAACP Legal Defense & Ed.
Fund, Inc.,
473 U. S.
788, 806 (1985). The novel question that this case presents
concerns the constitutionality of a public school's attempt to
limit the scope of a public forum it has created. More
specifically, the question is whether a school can, consistently
with the First Amendment, create a limited public forum that admits
the first type of religious speech without allowing the other
two.
Distinguishing speech from a religious viewpoint, on the one
hand, from religious proselytizing, on the other, is comparable to
distinguishing meetings to discuss political issues from meetings
whose principal purpose is to recruit new members to join a
political organization. If a school decides to authorize
afterschool discussions of current events in its classrooms, it may
not exclude people from expressing their views simply because it
dislikes their particular political opinions. But must it therefore
allow organized political groups-for example, the Democratic Party,
the Libertarian Party, or the Ku Klux Klan-to hold meetings, the
principal purpose of which is not to discuss the current-events
topic from their own unique point of view but rather to recruit
others to join their respective groups? I think not. Such
recruiting meetings may introduce divisiveness and
132
132 GOOD NEWS CLUB
v. MILFORD CENTRAL SCHOOL
STEVENS, J., dissenting
tend to separate young children into cliques that undermine the
school's educational mission. Cf.
Lehman v.
Shaker
Heights, 418 U.
S. 298 (1974) (upholding a city's refusal to allow "political
advertising" on public transportation).
School officials may reasonably believe that evangelical
meetings designed to convert children to a particular religious
faith pose the same risk. And, just as a school may allow meetings
to discuss current events from a political perspective without also
allowing organized political recruitment, so too can a school allow
discussion of topics such as moral development from a religious (or
nonreligious) perspective without thereby opening its forum to
religious proselytizing or worship. See,
e. g., Campbell v.
St. Tammany Parish School Board, 231 F.3d
937, 942
(CA5 2000) ("Under the Supreme Court's
jurisprudence, a government entity such as a school board has the
opportunity to open its facilities to activity protected by the
First Amendment, without inviting political or religious activities
presented in a form that would disserve its efforts to maintain
neutrality"). Moreover, any doubt on a question such as this should
be resolved in a way that minimizes "intrusion by the Federal
Government into the operation of our public schools,"
Mergens, 496 U. S., at 290 (STEVENS, J., dissenting); see
also
Epperson v.
Arkansas, 393 U. S. 97, 104 (1968)
("Judicial interposition in the operation of the public school
system of the Nation raises problems requiring care and restraint
.... By and large, public education in our Nation is committed to
the control of state and local authorities").
The particular limitation of the forum at issue in this case is
one that prohibits the use of the school's facilities for
"religious purposes." It is clear that, by "religious purposes,"
the school district did not intend to exclude all speech from a
religious point of view. See App. N13-N15 (testimony of the
superintendent for Milford schools indicating that the policy would
permit people to teach "that man was created by God as described in
the Book of Genesis" and that crime
133
was caused by society's "lack of faith in God"). Instead, it
sought only to exclude religious speech whose principal goal is to
"promote the gospel."
Id., at N18. In other words, the
school sought to allow the first type of religious speech while
excluding the second and third types. As long as this is done in an
evenhanded manner, I see no constitutional violation in such an
effort.1 The line between the various categories of religious
speech may be difficult to draw, but I think that the distinctions
are valid, and that a school, particularly an elementary school,
must be permitted to draw them.2 Cf.
Illinois ex rel.
McCollum v.
Board of Ed. of School Dist. No. 71,
Champaign Cty., 333 U. S. 203, 231 (1948)
(Frankfurter, J., concurring) ("In no activity of the State is it
more vital to keep out divisive forces than in its schools ...
").
This case is undoubtedly close. Nonetheless, regardless of
whether the Good News Club's activities amount to "worship," it
does seem clear, based on the facts in the record, that the school
district correctly classified those activities as falling within
the third category of religious speech and therefore beyond the
scope of the school's limited public forum.3 In short, I am
persuaded that the school district
1 The school district, for example, could not, consistently with
its present policy, allow school facilities to be used by a group
that affirmatively attempted to inculcate nonbelief in God or in
the view that morality is wholly unrelated to belief in God.
Nothing in the record, however, indicates that any such group was
allowed to use school facilities.
2 "A perceptive observer sees a material difference between the
light of day and the dark of night, and knows that difference to be
a reality even though the two are separated not by a bright line
but by a zone of twilight."
Buirkle v.
Hanover Ins.
Cos., 832 F. Supp. 469, 483 (Mass. 1993).
3 The majority elides the distinction between religious speech
on a particular topic and religious speech that seeks primarily to
inculcate belief. Thus, it relies on
Rosenberger v.
Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995), as
if that case involved precisely the same type of speech that is at
issue here. But, while both Wide Awake, the organization in
Rosenberger, and the Good News Club engage in a mixture
134
134 GOOD NEWS CLUB
v. MILFORD CENTRAL SCHOOL
SOUTER, J., dissenting
could (and did) permissibly exclude from its limited public
forum proselytizing religious speech that does not rise to the
level of actual worship. I would therefore affirm the judgment of
the Court of Appeals.
Even if I agreed with Part II of the majority opinion, however,
I would not reach out, as it does in Part IV, to decide a
constitutional question that was not addressed by either the
District Court or the Court of Appeals.
Accordingly, I respectfully dissent.
JUSTICE SOUTER, with whom JUSTICE GINSBURG joins,
dissenting.
The majority rules on two issues. First, it decides that the
Court of Appeals failed to apply the rule in
Lamb's Chapel
v.
Center Moriches Union Free School Dist., 508 U. S. 384
(1993), which held that the government may not discriminate on the
basis of viewpoint in operating a limited public forum. The
majority applies that rule and concludes that Milford violated
Lamb's Chapel in denying Good News the use of the school.
The majority then goes on to determine that it would not violate
the Establishment Clause of the First Amendment for the Milford
School District to allow the Good News Club to hold its intended
gatherings of public school children in Milford's elementary
school.
of different types of religious speech, the
Rosenberger
Court clearly believed that the first type of religious speech
predominated in Wide Awake. It described that group's publications
as follows:
"The first issue had articles about racism, crisis pregnancy,
stress, prayer, C. S. Lewis' ideas about evil and free will, and
reviews of religious music. In the next two issues, Wide Awake
featured stories about homosexuality, Christian missionary work,
and eating disorders, as well as music reviews and interviews with
University professors."
Id., at 826.
In contrast to Wide Awake's emphasis on providing Christian
commentary on such a diverse array of topics, Good News Club
meetings are dominated by religious exhortation, see
post,
at 137-138 (SOUTER, J., dissenting). My position is therefore
consistent with the Court's decision in
Rosenberger.
135
The majority is mistaken on both points. The Court of Appeals
unmistakably distinguished this case from
Lamb's Chapel,
though not by name, and accordingly affirmed the application of a
policy, unchallenged in the District Court, that Milford's public
schools may not be used for religious purposes. As for the
applicability of the Establishment Clause to the Good News Club's
intended use of Milford's school, the majority commits error even
in reaching the issue, which was addressed neither by the Court of
Appeals nor by the District Court. I respectfully dissent.
I
Lamb's Chapel, a case that arose (as this one does) from
application of N. Y. Educ. Law § 414 (McKinney 2000) and local
policy implementing it, built on the accepted rule that a
government body may designate a public forum subject to a
reasonable limitation on the scope of permitted subject matter and
activity, so long as the government does not use the forum-defining
restrictions to deny expression to a particular viewpoint on
subjects open to discussion. Specifically,
Lamb's Chapel
held that the government could not "permit school property to be
used for the presentation of all views about family issues and
child rearing except those dealing with the subject matter from a
religious standpoint." 508 U. S., at 393-394.
This case, like
Lamb's Chapel, properly raises no issue
about the reasonableness of Milford's criteria for restricting the
scope of its designated public forum. Milford has opened school
property for, among other things, "instruction in any branch of
education, learning or the arts" and 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."
App. to Pet. for Cert. D1-D3. But Milford has done this subject to
the restriction that "[s]chool premises shall not be used ...
for
136
136 GOOD NEWS CLUB
v. MILFORD CENTRAL SCHOOL
SOUTER, J., dissenting
religious purposes."
Id., at D2. As the District Court
stated, Good News did "not object to the reasonableness of
[Milford]'s policy that prohibits the use of [its] facilities for
religious purposes."
Id., at
C14.
The sole question before the District Court was, therefore,
whether, in refusing to allow Good News's intended use, Milford was
misapplying its unchallenged restriction in a way that amounted to
imposing a viewpoint-based restriction on what could be said or
done by a group entitled to use the forum for an educational,
civic, or other permitted purpose. The question was whether Good
News was being disqualified when it merely sought to use the school
property the same way that the Milford Boy and Girl Scouts and the
4-H Club did. The District Court held on the basis ofundisputed
facts that Good News's activity was essentially unlike the
presentation of views on secular issues from a religious standpoint
held to be protected in
Lamb's Chapel, see App. to Pet. for
Cert.
C29-C31, and was instead activity precluded by
Milford's unchallenged policy against religious use, even under the
narrowest definition of that term.
The Court of Appeals understood the issue the same way.
See
202 F.3d
502, 508 (CA2 2000) (Good News argues that "to exclude the Club
because it teaches morals and values from a Christian perspective
constitutes unconstitutional viewpoint discrimination"); id., at
509 ("The crux of the Good News Club's argument is that the Milford
school's application of the Community Use Policy to exclude the
Club from its facilities is not viewpoint neutral").l The Court of
Appeals
1 The Court of Appeals held that any challenge to the policy's
reasonableness was foreclosed by its own precedent, 202 F. 3d, at
509, a holding the majority leaves untouched, see
ante, at
107 ("[W]e need not decide whether it is unreasonable in light of
the purposes served by the forum"); cf.
ante, at 108, n. 2
("Because we hold that the exclusion of the Club on the basis of
its religious perspective constitutes unconstitutional viewpoint
discrimination, it is no defense for Milford that purely religious
purposes can be excluded under state law"). In any event, the
reasonableness of the forum limitation was beyond the scope of the
appeal from summary
137
also realized that the
Lamb's Chapel criterion was the
appropriate measure: "The activities of the Good News Club do not
involve merely a religious perspective on the secular subject of
morality." 202 F. 3d, at 510. Cf.
Lamb's Chapel, supra, at
393 (district could not exclude "religious standpoint" in
discussion on child rearing and family values, an undisputed "use
for social or civic purposes otherwise permitted" under the use
policy).2 The appeals court agreed with the District Court that the
undisputed facts in this case differ from those in
Lamb's
Chapel, as night from day. A sampling of those facts shows why
both courts were correct.
Good News's classes open and close with prayer. In a sample
lesson considered by the District Court, children are instructed
that "[t]he Bible tells us how we can have our sins forgiven by
receiving the Lord Jesus Christ. It tells us how to live to please
Him .... If you have received the Lord Jesus as your Saviour from
sin, you belong to God's special group-His family." App. to Pet.
for Cert.
C17-C18 (ellipsis in original). The lesson plan
instructs the teacher to "lead a child to Christ," and, when
reading a Bible verse, to "[e]mphasize that this verse is from the
Bible, God's Word," and is "important-and true-because God said
it." The lesson further exhorts the teacher to "[b]e sure to give
an opportunity for the 'unsaved' children in your class to respond
to the Gospel" and cautions against "neglect[ing] this
responsibility."
Id., at C20.
While Good News's program utilizes songs and games, the heart of
the meeting is the "challenge" and "invitation," which are repeated
at various times throughout the lesson.
judgment since the District Court had said explicitly that the
religious use limitation was not challenged.
2 It is true, as the majority notes,
ante, at 109, n. 3,
that the Court of Appeals did not cite
Lamb's Chapel by
name. But it followed it in substance, and it did cite an earlier
opinion written by the author of the panel opinion here,
Bronx
Household of Faith v.
Community School Dist. No. 10,
127 F.3d
207 (CA2 1997), which discussed
Lamb's Chapel at
length.
138
138 GOOD NEWS CLUB
v. MILFORD CENTRAL SCHOOL
SOUTER, J., dissenting
During the challenge, "saved" children who "already believe in
the Lord Jesus as their Savior" are challenged to "'stop and ask
God for the strength and the "want" ... to obey Him.'"
Ibid.
They are instructed that
"[i]f you know Jesus as your Savior, you need to place God first
in your life. And if you don't know Jesus as Savior and if you
would like to, then we will-we will pray with you separately,
individually .... And the challenge would be, those of you who know
Jesus as Savior, you can rely on God's strength to obey Him."
Ibid.
During the invitation, the teacher "invites" the "unsaved"
children" 'to trust the Lord Jesus to be your Savior from sin,'"
and" 'receiv[e] [him] as your Savior from sin.'"
Id., at
C21. The children are then instructed that
"[i]f you believe what God's Word says about your sin and how
Jesus died and rose again for you, you can have His forever life
today. Please bow your heads and close your eyes. If you have never
believed on the Lord Jesus as your Savior and would like to do
that, please show me by raising your hand. If you raised your hand
to show me you want to believe on the Lord Jesus, please meet me so
I can show you from God's Word how you can receive His everlasting
life." Ibid.
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.3 The majority
3The majority rejects Milford's contention that Good News's
activities fall outside the purview of the limited forum because
they constitute "religious worship" on the ground that the Court of
Appeals made no such determination regarding the character of the
club's program, see
ante, at 112, n. 4. This distinction is
merely semantic, in light of the Court
139
avoids this reality only by resorting to the bland and general
characterization of Good News's activity as "teaching of morals and
character, from a religious standpoint."
Ante, at 109. If
the majority's statement ignores reality, as it surely does, then
today's holding may be understood only in equally generic terms.
Otherwise, indeed, this case would stand for the remarkable
proposition that any public school opened for civic meetings must
be opened for use as a church, synagogue, or mosque.
II
I also respectfully dissent from the majority's refusal to
remand on all other issues, insisting instead on acting as a court
of first instance in reviewing Milford's claim that it would
violate the Establishment Clause to grant Good News's application.
Milford raised this claim to demonstrate a compelling interest for
saying no to Good News, even on the erroneous assumption that
Lamb's Chapel's public forum analysis would otherwise
require Milford to say yes. Whereas the District Court and Court of
Appeals resolved this case entirely on the ground that Milford's
actions did not offend the First Amendment's Speech Clause, the
majority now sees fit to rule on the application of the
Establishment Clause, in derogation of this Court's proper role as
a court of review.
E. g., National Collegiate Athletic
of Appeals's conclusion that "[i]t is difficult to see how the
Club's activities differ materially from the 'religious worship'
described" in other case law,
202 F.3d
502, 510 (CA2 2000), and the record below.
JUSTICE STEVENS distinguishes between proselytizing and worship,
ante, at 130 (dissenting opinion), and distinguishes each
from discussion reflecting a religious point of view. I agree with
JUSTICE STEVENS that Good News's activities may be characterized as
proselytizing and therefore as outside the purpose of Milford's
limited forum,
ante, at 133. Like the Court of Appeals, I
also believe Good News's meetings have elements of worship that put
the club's activities further afield of Milford's limited forum
policy, the legitimacy of which was unchallenged in the summary
judgment proceeding.
140
140 GOOD NEWS CLUB
v. MILFORD CENTRAL SCHOOL
SOUTER, J., dissenting
Assn. v.
Smith, 525 U. S. 459, 470 (1999)
("[W]e do not decide in the first instance issues not decided
below").
The Court's usual insistence on resisting temptations to convert
itself into a trial court and on remaining a court of review is not
any mere procedural nicety, and my objection to turning us into a
district court here does not hinge on a preference for immutable
procedural rules. Respect for our role as a reviewing court rests,
rather, on recognizing that this Court can often learn a good deal
from considering how a district court and a court of appeals have
worked their way through a difficult issue. It rests on recognizing
that an issue as first conceived may come to be seen differently as
a case moves through trial and appeal; we are most likely to
contribute something of value if we act with the benefit of
whatever refinement may come in the course of litigation. And our
customary refusal to become a trial court reflects the simple fact
that this Court cannot develop a record as well as a trial court
can. If I were a trial judge, for example, I would balk at deciding
on summary judgment whether an Establishment Clause violation would
occur here without having statements of undisputed facts or
uncontradicted affidavits showing, for example, whether Good News
conducts its instruction at the same time as school-sponsored
extracurricular and athletic activities conducted by school staff
and volunteers, see Brief for Respondent 6; whether any other
community groups use school facilities immediately after classes
end and how many students participate in those groups; and the
extent to which Good News, with 28 students in its membership, may
"dominate the forum" in a way that heightens the perception of
official endorsement,
Rosenberger v.
Rector and Visitors
of Univ. of Va., 515 U. S. 819, 851 (1995)
(O'CONNOR, J., concurring); see also
Widmar v.
Vincent, 454
U. S. 263, 274 (1981). We will never know these facts.
Of course, I am in no better position than the majority to
perform an Establishment Clause analysis in the first
141
instance. Like the majority, I lack the benefit that development
in the District Court and Court of Appeals might provide, and like
the majority I cannot say for sure how complete the record may be.
I can, however, speak to the doubtful underpinnings of the
majority's conclusion.
This Court has accepted the independent obligation to obey the
Establishment Clause as sufficiently compelling to satisfy strict
scrutiny under the First Amendment. See id., at 271 ("[T]he
interest of the [government] in complying with its constitutional
obligations may be characterized as compelling");
Lamb's
Chapel, 508 U. S., at 394. Milford's actions would offend the
Establishment Clause if they carried the message of endorsing
religion under the circumstances, as viewed by a reasonable
observer. See
Capitol Square Review and Advisory Bd. v.
Pinette, 515
U. S. 753, 777 (1995) (O'CONNOR, J., concurring). The majority
concludes that such an endorsement effect is out of the question in
Milford's case, because the context here is "materially
indistinguishable" from the facts in
Lamb's Chapel and
Widmar. Ante, at 113. In fact, the majority is in no
position to say that, for the principal grounds on which we based
our Establishment Clause holdings in those cases are clearly absent
here.
In
Widmar, we held that the Establishment Clause did not
bar a religious student group from using a public university's
meeting space for worship as well as discussion. As for the
reasonable observers who might perceive government endorsement of
religion, we pointed out that the forum was used by university
students, who "are, of course, young adults," and, as such, "are
less impressionable than younger students and should be able to
appreciate that the University's policy is one of neutrality toward
religion." 454 U. S., at 274, n.14. To the same effect, we remarked
that the "large number of groups meeting on campus" negated "any
reasonable inference of University support from the mere fact of a
campus meeting place."
Ibid. Not only was the forum
"available to a broad class of nonreligious as
142
142 GOOD NEWS CLUB
v. MILFORD CENTRAL SCHOOL
SOUTER, J., dissenting
well as religious speakers," but there were, in fact, over 100
recognized student groups at the University, and an "absence of
empirical evidence that religious groups [would] dominate [the
University's] open forum."
Id., at 274-275; see also
id., at 274 ("The provision of benefits to so broad a
spectrum of groups is an important index of secular effect"). And
if all that had not been enough to show that the university-student
use would probably create no impression of religious endorsement,
we pointed out that the university in that case had issued a
student handbook with the explicit disclaimer that "the
University's name will not 'be identified in any way with the aims,
policies, programs, products, or opinions of any organization or
its members.'"
Id., at 274, n. 14.
Lamb's Chapel involved an evening film series on child
rearing open to the general public (and, given the subject matter,
directed at an adult audience). See 508 U. S., at 387, 395. There,
school property "had repeatedly been used by a wide variety of
private organizations," and we could say with some assurance that
"[u]nder these circumstances ... there would have been no realistic
danger that the community would think that the District was
endorsing religion or any particular creed .... "
Id., at
395.
What we know about this case looks very little like
Wid
mar or
Lamb's Chapel. The cohort addressed by Good
News is not university students with relative maturity, or even
high school pupils, but elementary school children as young as
six.4 The Establishment Clause cases have
4 It is certainly correct that parents are required to give
permission for their children to attend Good News's classes, see
ante, at 115 (as parents are often required to do for a host
of official school extracurricular activities), and correct that
those parents would likely not be confused as to the sponsorship of
Good News's classes. But the proper focus of concern in assessing
effects includes the elementary school pupils who are invited to
meetings, Lodging, Exh. X2, who see peers heading into classrooms
for religious instruction as other classes end, and who are
addressed by the "challenge" and "invitation."
The fact that there may be no evidence in the record that
individual students were confused during the time the Good News
Club met on school
143
consistently recognized the particular impressionability of
schoolchildren, see
Edwards v.
Aguillard, 482 U. S. 578, 583584
(1987), and the special protection required for those in the
elementary grades in the school forum, see
County of
Allegheny v.
American Civil Liberties Union, Greater
Pittsburgh Chapter, 492 U. S. 573, 620, n. 69
(1989). We have held the difference between college students and
grade school pupils to be a "distinction [that] warrants a
difference in constitutional results,"
Edwards v.
Aguillard, supra, at 584, n. 5 (internal quotation marks and
citation omitted).
Nor is Milford's limited forum anything like the sites for
wide-ranging intellectual exchange that were home to the challenged
activities in
Widmar and
Lamb's Chapel. See also
Rosenberger, 515 U. S., at 850, 836-837. In
Widmar,
the nature of the university campus and the sheer number of
activities offered precluded the reasonable college observer from
seeing government endorsement in anyone of them, and so did the
time and variety of community use in the
Lamb's Chapel case.
See also
Rosenberger, 515 U. S., at 850 ("Given this wide
array of nonreligious, antireligious and competing religious
viewpoints in the forum supported by the University, any perception
that the University endorses one particular viewpoint would be
illogical"); id., at 836-837, 850 (emphasizing the array of
university-funded magazines containing "widely divergent
viewpoints" and the fact that believers in Christian evangelism
competed on equal footing in the University forum with aficionados
of "Plato, Spinoza, and Descartes," as well as "Karl Marx, Bertrand
Russell, and Jean-Paul Sartre");
Board of Ed. of Westside
Community Schools (Dist. 66) v.
Mergens, 496
premises pursuant to the District Court's preliminary injunction
is immaterial, cf. Brief for Petitioners 38. As JUSTICE O'CONNOR
explained in
Capitol Square Review and Advisory Bd. v.
Pinette, 515
U. S. 753 (1995), the endorsement test does not focus "on the
actual perception of individual observers, who naturally have
differing degrees of knowledge," but on "the perspective of a
hypothetical observer."
Id., at 779-780 (opinion concurring
in part and concurring in judgment).
144
u. S. 226, 252 (1990) (plurality opinion) ("To the extent that a
religious club is merely one of many different studentinitiated
voluntary clubs, students should perceive no message of government
endorsement of religion").
The timing and format of Good News's gatherings, on the other
hand, may well affirmatively suggest the
imprimatur of
officialdom in the minds of the young children. The club is open
solely to elementary students (not the entire community, as in
Lamb's Chapel), only four outside groups have been
identified as meeting in the school, and Good News is, seemingly,
the only one whose instruction follows immediately on the
conclusion of the official schoolday. See Brief for National School
Boards Association et al. as
Amici Curiae 6. Although school
is out at 2:56 p.m., Good News apparently requested use of the
school beginning at 2:30 on Tuesdays "during the school year," so
that instruction could begin promptly at 3:00, see Lodging, Exh.
W-1, at which time children who are compelled by law to attend
school surely remain in the building. Good News's religious meeting
follows regular school activities so closely that the Good News
instructor must wait to begin until "the room is clear," and
"people are out of the room," App. P29, before starting proceedings
in the classroom located next to the regular third- and
fourth-grade rooms, id., at N12. In fact, the temporal and physical
continuity of Good News's meetings with the regular school routine
seems to be the whole point of using the school. When meetings were
held in a community church, 8 or 10 children attended; after the
school became the site, the number went up three-fold.
Id.,
at P12; Lodging, Exh. AA2.
Even on the summary judgment record, then, a record lacking
whatever supplementation the trial process might have led to, and
devoid of such insight as the trial and appellate judges might have
contributed in addressing the Establishment Clause, we can say
this: there is a good case that Good News's exercises blur the line
between public
145
classroom instruction and private religious indoctrination,
leaving a reasonable elementary school pupil unable to appreciate
that the former instruction is the business of the school while the
latter evangelism is not. Thus, the facts we know (or think we
know) point away from the majority's conclusion, and while the
consolation may be that nothing really gets resolved when the
judicial process is so truncated, that is not much to recommend
today's result.
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