THE 4 "Rs" OF ELEMENTARY EDUCATION:

"READING, WRITING, ARITHMETIC AND RELIGION"

Last week the United States Supreme Court heard oral arguments in the equal access case of Good News Club v. Milford Central School, No. 99-2036. This case is heard on appeal from the 2^nd Circuit decision that a New York elementary school policy limiting all religious use of its facilities was reasonable because the exclusion was viewpoint neutral and did not violate the free speech clause.

In several earlier cases, the United States Supreme Court has held that the government must provide "equal access" to religious groups, particularly if denying such access would discriminate against the religious group's speech content or viewpoint. Congressional authority exists for this doctrine under the Equal Access Act, which grants religious groups the right to meet at public secondary schools and colleges. It is unclear whether this law affords the same access to elementary students.

There are several pathways the Supreme Court might take in deciding this case. For example, the court may decide to extend the grant of the Equal Access Act to elementary schools, or it may rule that elementary school students are too young and impressionable to warrant affording similar protections as are enjoyed by secondary schools. It is also possible the Court will remand the case to determine the impact of the age of the children on the likelihood that they are susceptible to thinking that the school was endorsing the club's religious message, as suggested by Justice Ginsburg. The Court must also determine whether to decide this case on free speech grounds alone or invoke the Establishment Clause's almost ironclad prohibition of direct financial aid to core religious activity. At issue will be what the founding fathers intended by the Establishment Clause's "wall of separation between Church and State."

Stay tuned!

Good News for the Good News Club

The Supreme Court ruled (6-3) this week in Good News Club v. Milford Central School (No. 99-2036) that a school policy of denying access to school grounds for a weekly afterschool meeting of elementary age students by the Good News Club, a Christian organization, violated the free speech rights of the Club. The Court further found that permitting the Club to meet on school grounds would not violate the Establishment Clause. The case was remanded for further proceedings consistent with the Supreme Court’s ruling.

This "equal access" case was heard on appeal from the 2^nd Circuit decision that a New York elementary school policy limiting all religious use of its facilities was reasonable because the exclusion was viewpoint neutral and did not violate the free speech clause. In recognizing a conflict among the Courts of Appeals on the question whether religious speech can be excluded from a limited public forum, the Court granted certiorari.

In this case, the parties agreed that the school created a limited public forum when it opened its facilities, in accordance with New York law, for, among other things, "instruction in any branch of education, learning or the arts . . . [and] 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." In cases involving a limited public forum the Court noted that the State’s power to restrict speech is limited to instances of viewpoint neutrality and reasonable in light of the purpose served by the forum.

Justices Rehnquist, O’Connor, Scalia and Kennedy joined Justice Thomas, writing for the majority. Justice Breyer joined in part, filing a concurring opinion. Justice Scalia also filed a concurring opinion. Justice Stevens filed a dissenting opinion, as did Justice Souter, who was joined by Justice Ginsburg.

Relying on the earlier cases of Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384 (1993) and Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995), the Court found that the school engaged in viewpoint discrimination when it denied the Club access to the school facilities on the basis that the Club discussed subject matters from a religious viewpoint. In noting its disagreement with the reasoning of the Court of Appeals, the Court stated that "[w]hat 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."

The second question the Court addressed was the validity of the school board’s interest in not violating the Establishment Clause. Again relying on earlier precedent, the Court concluded that the school has no valid Establishment Clause interest because "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." Additionally, the Court found unpersuasive the school district’s argument that "[the elementary school] children will perceive that the school is endorsing the Club and will feel coercive pressure to participate, because the Club’s activities take place on school grounds, even though they occur during nonschool hours."

Justice Souter dedicates the majority of his dissent to disputing the majority’s holding on the Establishment Clause question because he believes that additional facts must be obtained regarding the use of the facilities by other groups. Justice Breyer echoes this concern in his concurrence.

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