Christian Clubs in Public Schools

by DAVID C. SLADE

World and I, September 2001, volume 16, issue 9, page 54

After the Founding Fathers drafted the U.S. Constitution establishing the framework for the new federal government, widespread opposition remained, because the document didn't expressly protect individual liberties and states' rights. So it was that after the Constitution was approved in 1789, the first Congress met later that year to consider adoption of the Bill of Rights, the first 10 amendments to the Constitution.

In the First Amendment, Congress protected two fundamental American liberties--the right to free speech and the free practice of religion-- and imposed one major check on the newly formed federal government, a firm prohibition against making any law "respecting the establishment of religion."

These three clauses of the First Amendment are today commonly known as the free speech clause, the freedom of religion clause, and the establishment clause. In an interesting case recently decided by the U.S. Supreme Court, all three clauses clashed in Good News Club v. Milford Central School.

The Good News Club is a private Christian organization for children between 6 and 12 years of age. At club meetings, children gather to sing songs, hear Bible lessons, memorize scripture, and discuss how the Bible can be a "moral and character guide."

Milford Central School, a New York public school, adopted a "community use" policy that allowed various social, civic, and recreational groups to use its buildings after school as long as the meetings didn't exclude anyone, were open to the public, and were not for religious purposes.

The Good News Club sought permission from Milford Central to hold its weekly after-school meetings in the school cafeteria. The school denied the request, stating in a letter to the club that its activities were "the equivalent of religious worship" and as such were subject to the community-use policy prohibiting use of the school buildings "by any individual or organization for religious purposes."

After talks proved fruitless, the Good News Club sued Milford Central School in federal district court, claiming that Milford Central's denial of its application violated its rights to free speech and religious practice under the First Amendment.

At first, the court granted a preliminary injunction, allowing the club to hold its weekly meetings at the school. After further hearings, however, the district court vacated the injunction, holding that the club's "subject matter is decidedly religious in nature, and not merely a discussion of secular matters from a religious perspective that is otherwise permitted under the community-use policies."

The Good News Club appealed. The U.S. circuit court of appeals affirmed. The club petitioned the U.S. Supreme Court to hear the case. Because of the conflict among the circuit courts of appeals around the country on this issue, it agreed.

The starting point in free speech cases is to look at the forum where the speech is to be conducted: Is it an open public forum or a limited public forum? This was made easy, because both the club and the school agreed that the school building was a limited public forum. As the Court noted, as a limited public forum, the school "is not required to allow persons to engage in every type of speech." Nonetheless, the school cannot "discriminate against speech on the basis of viewpoint."

Thus, the case boiled down to whether the club's activity was that of discussing character and moral development of children from a religious "viewpoint" or simply "proselytizing" to the children in order to convert them to the club's brand of Christianity. Six of the nine judges held that the club's meetings were simply viewpoint discussions (protected by the free speech clause) and not proselytizing.

The majority noted that the school itself agreed that "teaching morals and character development to children is a permissible purpose under Milford's policy." They went on to note that the teaching of morals and character development from a religious viewpoint is "not logically different in kind" from the teaching of morals and character development based on Aesop's fables or the Boy Scout creed. Thus, excluding the club based on its religious viewpoint was unconstitutional discrimination. The school argued, however, that even if its restriction amounted to viewpoint discrimination, its policy was still constitutional in view of the establishment clause--that no state can sponsor a religion. The majority disagreed.

The Court noted that 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 club members. Further, because the children could attend the club's meetings only with parental consent and the club's instructors were not schoolteachers, there was no realistic threat that either the children or their parents would believe that the school, as part of the New York State government, was endorsing the club's brand of religion.

"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," the justices said.

In dissent, Justice Stevens viewed the club's activities as did the lower courts, more as proselytizing than viewpoint discussion. That is, the club's main purpose for the meetings, as Stevens saw it, was to convert the children to the club's form of Christianity. As such, the school acted constitutionally when it excluded the club "from its limited public forum [for] proselytizing religious speech that does not rise to the level of actual worship."

At the same time, Stevens conceded that "the line between the various categories of religious speech may be difficult to draw" and that the case was "undoubtedly close."

This decision is certainly good news for religious clubs and organizations around the country, opening public doors to hold their meetings in public forums--when their activity does not rise above religious "viewpoint discussion." Drawing that "viewpoint/ proselytizing" line, however, is certainly going to receive much more attention and debate in schools and municipalities nationwide.

David Slade has been a member of the U.S. Supreme Court bar since 1986 and practices law in Bowie, Maryland.