"Have To" History Preview: Good News Club v. Milford Central School (2001)

I've been posting rough drafts from what I hope will be an upcoming book focused on Supreme Court cases related to church-state separation in public education. Some aren't cases likely to get full treatment in the book but of interest to me personally, so I ramble about them here. Others – like this one – don't require extended analysis or my trademark pithy insights, but still deserve a mention. (The final version of this one will probably be shaved by about a third to keep things readable and leave a few trees in the forests.)

Good News Club v. Milford (2001) was one of a string of "equal access" cases in which the basic issue was the use of school faciltiies outside of normal hours. Arguably the two most important cases on this topic were Westside Community Schools v. Mergens (1990) and Lamb's Chapel v. Center Moriches Union Free School District (1993). In both, the lead attorney for those seeking equal access for religious groups on the same terms as others was none other than Jay Sekulow, the right-wing talk show host, big dog at the ACLJ, and favored defender of President Donald Trump. (He was not involved in THIS particular case as far as I know, but he certainly helped lay the groundwork for the arguments supporting the winning side.)

I'm not a big fan of Sekulow, generally speaking, but he was effective before the Supreme Court. It didn't hurt that he was on the right side in both of these particular cases. Fear of "establishment" should not prevent "free exercise" of faith. It's one thing for government entities (like schools) to be careful about promoting one faith over another, or of faith in general over a lack thereof, or to take steps to reduce alienating individuals students who may not fit the majority. It's another to slip into discriminating against students of faith by restricting their voices or choices based on their beliefs. Hopefully this is largely understood and followed today most places.

Hopefully.

But what about outside groups asking to use school facilities on the same terms as others? Not just to express their point of view, but to have, you know... church? Which brings us to...

Worth A Look: Good News Club v. Milford Central School (2001)

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.” ... The State’s power to restrict speech, however, is not without limits. The restriction must not discriminate against speech on the basis of viewpoint, and the restriction must be “reasonable in light of the purpose served by the forum.” ...

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... 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... 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 Rosenberger.

(from the Court’s Majority Opinion, by Justice Clarence Thomas)

In Widmar v. Vincent (1981), the Supreme Court determined that when a university made its facilities available to extra-curricular groups outside of normal school hours, it created a “limited open forum.” If religious student organizations wished to use the facilities on the same terms as other groups, they must be allowed to do so. The Equal Access Act of 1984 specifically extended this principal to public high schools. They don’t have to allow extra-curricular clubs, but if they do, they can’t exclude Christian groups or others solely based on their beliefs.

In Westside Community Schools v. Mergens (1990), the Court confirmed the right of students to have a prayer and Bible club on the same terms as Ski Club and Polka Club, etc. As long as they followed the same basic rules and met the same reasonable standards, they must receive the same opportunities and benefits. Lamb’s Chapel v. Center Moriches Union Free School District (1993) extended the principal to community use of school facilities outside of the school day. A few years later, in Rosenberger v. University of Virginia (1995), the Court nudged the idea a bit further by requiring the university to extend the same funding to student publications promoting faith that they did for other extra-curricular student newspapers.

The issue, then, was somewhat settled by the time the local franchise of the Good News Club applied to use Milford Central School for “a fun time of singing songs, hearing a Bible lesson and memorizing scripture." Milford Central School had a “community use” policy allowing after-hours use of facilities for, as they put it, “instruction in any branch of education, learning or the arts” and for other social events as long as they were open to anyone. After reviewing the Good News Club’s application, however, the district turned them down.

The school acknowledged they’d created a “limited open forum.” The “limited” part, however, meant they retained the right to allow some types of activities and topics and reject others – as long as they did so equitably. If they chose to allow discussions of parenting strategies or social issues, that didn’t mean they had to approve political rallies or rap battles. It did mean, however, that they couldn’t turn down speakers who wished to talk about parenting from a Christian perspective or a local LGBTQ group wanting to address social issues from their community’s point of view. A limited forum created by a government entity can limit topics and activities, but not the belief systems or points of view brought to bear on those topics and activities.

The position of the Good News Club was that they were educating kids about the Bible and enjoying the art of songs about Jesus. They were on topic, but with a Christian perspective. The district’s position was that Good News wasn’t bringing a religious perspective to a larger discussion – they were having church, complete with altar calls and prayer, right there on school grounds. And this wasn’t just happy, “Jesus loves a good flannel board” church. With Good News Club, the “good news” was that all of your friends and their families would be destroyed and sent to hell just like Amalekites or Canaanites or whoever unless you got serious about warning them in no uncertain terms about it, as often as possible. Plus, Good News Clubs often sought out school facilities in order to reach the maximum number of young people, preferably by scheduling their events as soon as possible after the closing bell.

In other words, this was a new wrinkle. It’s one thing to allow or encourage all points of view related to topics of general interest to participating adults, or allow student-initiated groups to use school facilities to do student-initiated things, religious or not. This felt different, at least to Milford Central. This sounded like they were being asked to open their doors and hand over their kids to aggressive evangelizing by outsiders.

On the other hand, it wasn’t like Good News Club was kidnapping them or being particular sneaky. Parents knew where their kids were and the organization’s beliefs and methods were relatively transparent (although they maybe dialed down the “destruction of the Amalekites” angle on their flyers). They served snacks, but not Kool-Aid; they were fundamentalists – not a cult. Was it really so nefarious to reach kids where they were and teach them through singing and games and acceptance and fun?

Lower courts consistently sided with the school district, but the Supreme Court found in favor of the Good News Club. The majority saw no meaningful distinction between this situation and those in Lamb’s Chapel or Rosenberger. There was no danger of “establishment,” largely because the event was after hours, hosted by people who didn’t work at the school, and parents had to give specific permission for their children to attend. The Court noted that the school was available to the Boy Scouts, who were all about character development, and under questioning district representatives admitted they’d allow weekly readings of Aesop’s fables with a similar goal. To refuse Good News the same access as other groups was, in fact, unconstitutional “viewpoint discrimination.”

Today, it’s not unusual for schools to lease out space on weekends for actual church services or other events without concern they’re violating the Establishment Clause. As long as the terms and types of groups accepted are relatively equivalent, it takes something fairly extreme for a district to refuse access. Until the local Nazi Club or Pedophiles-4-Buddha fill out the required paperwork somewhere, this issue is largely resolved in the eyes of the courts.

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