Freedom of Religion

The United States Supreme Court ruled that a public school violated the free speech rights of a religious club by forbidding the club to meet after hours at the school.

Church Law and Tax2001-09-01

Freedom of religion

Key pointUse of Public Property for Religious Purposes Adults may use public property for religious purposes if the property is used by community organizations for non-religious purposes. Excluding religious speech, while allowing other kinds of speech, violates the first amendment guaranty of free speech.

The United States Supreme Court ruled that a public school violated the free speech rights of a religious club by forbidding the club to meet after hours at the school. New York authorizes local school boards to adopt regulations governing the use of their school facilities. A public school enacted a “community use policy” addressing the use of school property after the close of the school day by community groups. The policy allowed school property to be used “after hours” for “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.” A married couple organized a religious ministry for children ages 6 to 12 called a “Good News Club,” and they requested permission to hold the Club’s weekly after-school meetings in the school cafeteria. The stated purpose of the meetings was to have “a fun time of singing songs, hearing a Bible lesson and memorizing scripture.” A school official denied the couple’s request on the ground that the Club’s meetings would be “the equivalent of religious worship.” The official noted that the school’s community use policy prohibits use “by any individual or organization for religious purposes.” The Club sued the school, claiming that its refusal to allow the Club to meet on school property violated its free speech rights under the first amendment. A federal district court ruled in favor of the school since 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 school’s] use policies.” Further, since 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. A federal appeals court affirmed this ruling, and the Club appealed to the United States Supreme Court.

The court began its opinion by observing that “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. 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.” The court concluded that the school had created a “limited public forum,” and that when such a forum is created a school “is not required to and does not allow persons to engage in every type of speech.” Rather, the school may restrict its forum to certain groups or for the discussion of certain topics. A public school’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.”

Viewpoint Discrimination

The court referred to two previous cases in which it ruled that (1) a public school violated the first amendment guaranty of free speech when it excluded a private group from presenting films at the school based solely on the films’ discussions of family values from a Christian perspective, Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993), and (2) a university’s refusal to fund a student publication because the publication addressed issues from a religious perspective violated the first amendment guaranty of free speech. Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995). The court concluded that the school’s exclusion of the Good News Club because of its religious nature “is indistinguishable from the exclusions in these cases [and] we hold that the exclusion constitutes viewpoint discrimination.” The court continued,

[The school] has opened its limited public forum to activities that serve a variety of purposes, including events “pertaining to the welfare of the community.” [It] interprets its policy to permit discussions of subjects such as child rearing, and of “the development of character and morals from a religious perspective.” For example, this policy would allow someone to use Aesop’s Fables to teach children moral values. Additionally, a group could sponsor a debate on whether there should be a constitutional amendment to permit prayer in public schools, and the Boy Scouts could meet “to influence a boy’s character, development and spiritual growth.” In short, any group that “promotes the moral and character development of children” is eligible to use the school building. Just as there is no question that teaching morals and character development to children is a permissible purpose under [the school’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 [the school] found the Club’s activities to be religious in nature-“the equivalent of religious instruction itself”-it excluded the Club from use of its facilities.

Applying Lamb’s Chapel, we find it quite clear that [the school] 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 [a] “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.” 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 …. 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 …. 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” was “quintessentially religious.” The only apparent difference 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 “challenged Christians to live, in word and deed, according to the faith they proclaim and encouraged students to consider what a personal relationship with Jesus Christ means.” Because the university “selected for disfavored treatment those student journalistic efforts with religious editorial viewpoints,” we held that the denial of funding was unconstitutional. 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. 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 [school] believed that its characterization of the Club’s activities as religious in nature warranted treating the Club’s activities as different in kind from the other activities permitted by the school. The “Christian viewpoint” is unique, according to the [court of appeals], because it contains an “additional layer” that other kinds of viewpoints do not. 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.” 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.

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 [first amendment guaranty of free speech] 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 Rosenberger 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 [the school’s] exclusion of the Club from use of the school, pursuant to its community use policy, constitutes impermissible viewpoint discrimination.

The school insisted that its decision to exclude the Club was required by the first amendment’s nonestablishment of religion clause. The court disagreed, based on the following four considerations: (1) “In distinguishing between indoctrination that is attributable to the state and indoctrination that is not, [this 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.” 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.” (2) The “community” would feel no coercive pressure to engage in the Club’s activities, since 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. (3) “[W]e 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.” (4) Allowing the Good News Club to meet would not create a misperception by schoolchildren that the school is endorsing religion. “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 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. In sum, these circumstances simply do not support the theory that small children would perceive endorsement here.” (5) “[E]ven 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 …. We cannot operate … 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.”

Application. Public schools do not have to allow any community groups to use school property. But once they open their doors to some community groups, they cannot deny the same privilege to other groups because of the religious viewpoint of their speech and activities. Good News Club v. Milford Central School, 2001 WL 636202 (2001).

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