Memorandum of Law on Equal Access - 2004
Despite clear admonitions from the Supreme Court, some school districts, municipal governments, and courts continue to adopt facilities use policies that allow broad access by the community and yet singularly exclude "religious uses." Almost invariably, such policies are also justified by the mistaken notion that permitting such uses would violate the Establishment Clause. In actuality, this practice proceeds from the fundamentally flawed premise that the government can define the boundaries of a limited public forum along expressly religious lines. This premise cannot be reconciled with basic principles of Free Speech.
A. Good News Club v. Milford
The Supreme Court's most recent decision in this area is Good News Club v. Milford, 121 S. Ct. 2093 (2001), in which the Court resolved a conflict among the Courts of Appeals as to whether speech could be excluded from a limited public forum based on the religious nature of the speech.
In Good News, the Court considered the validity of a community use policy which opened Milford Central School facilities to a broad spectrum of "social, civic, and recreational meetings and entertainment events," but expressly prohibited use "by any individual or organization for religious purposes." Id. at 2097. Pursuant to this policy, the Good News Club ("the Club") sought and was denied access to those facilities. The Club was a private, community-based Christian youth organization whose purpose is to instruct children in moral values from a Christian perspective. Milford justified its denial of the club's request because the kinds of activities proposed to be 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.
Good News presented almost an exact replay of the issues and arguments presented to the Court in Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993). Just as it had done in Lamb's Chapel, the Court declined to decide whether a school district's opening of its facilities in this manner creates a limited or a traditional public forum. Good News, 121 S. Ct. at 2100. The parties in Good News agreed that Milford created a limited public forum; therefore, the Court operated under that assumption and went on to clarify the standards it would apply to determine whether the school district had unconstitutionally excluded the Club:
When a 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.
Good News, 121 S. Ct. at 2100 (internal citations and quotations omitted).
Applying that test, the Court drew on its analysis in two previous decisions, Lamb's Chapel and Rosenberger v. Rector and Visitors of Univ. Of Va., 515 U.S. 819 (1995):
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.
Good News, 121 S. Ct. at 2100. The Court found that Milford's exclusion of the Club was indistinguishable from those cases and constituted impermissible viewpoint discrimination. Id. The Court declined to decide whether the exclusion was also unreasonable in light of the purposes served by the forum.
That Milford had opened the forum for a variety of purposes, specifically allowing any group that "promotes the moral and character development of children," formed the basis of the Court's decision. Id. at 2101. The Club no doubt dealt with a subject otherwise permissible under the policy -- the teaching of morals and character -- albeit from a religious perspective. It was of no consequence to the Court that the Club chose to teach its lessons through Bible stories and prayer, instead of through films as in Lamb's Chapel, because "both modes of speech use a religious viewpoint." Good News, 121 S. Ct. at 2101. The Court rejected the lower court's characterization of the Club's methods as "quintessentially religious" and therefore warranting treatment different in kind from other activities:
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. 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. . . . 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.
Id. at 2102.
Justice Scalia wrote a concurrence in which he agreed with the majority's conclusion that Milford discriminated on the basis of viewpoint, and further pointed out that the exclusion failed First Amendment scrutiny regardless of whether its action was characterized as viewpoint or subject-matter discrimination because "[e]ven subject-matter limits must at least be reasonable in light of the purpose served by the forum." Id. at 2108 (internal quotations omitted).
Policies such as those struck down in Good News and Lamb's Chapel are frequently conceived under the misconception that excluding religious uses is required to avoid violating the Establishment Clause. To the contrary, the Supreme Court's religion cases require a policy of neutrality toward religion that in no way necessitates or justifies the exclusion of religious speakers or religious topics. The Court rejected Milford's argument, stating that "Milford's implication that granting access to the Club would do damage to the neutrality principle defies logic." Id. at 2104.
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."
Id. at 2104 (quoting Rosenberger, 515 U.S. at 839). The Court explained that allowing the Club access "would ensure neutrality, not threaten it." Id.
In addition to neutrality, the Court has repeatedly emphasized the distinction between direct government involvement in religious speech or activity and government toleration of private religious expression. As the Court in Mergens recognized, "there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect." 496 U.S. at 250 (plurality) (emphasis in original). Furthermore, the Court has explained that no valid Establishment Clause interest exists where private speech is permitted in a forum already available to other groups, held after school hours, not sponsored by the school, and open to any who wished to attend, not just members. See Lamb's Chapel, 508 U.S. at 395; Widmar v. Vincent, 454 U.S. at 272-273 (1981). To the extent that the risk of perceived endorsement is relevant in this type of an Establishment Clause challenge, these factors effectively minimize that risk.
As a last resort, Milford sought to bolster its endorsement argument and distinguish Lamb's Chapel and Widmar by emphasizing that its policy involved elementary school children. According to Milford, "children will perceive that the school is endorsing the Club and will feel coercive pressure to participate." Id. at 2103. The Court was quick to point out that "whatever significance we may have assigned in the Establishment Clause context to the suggestion that elementary school children are more impressionable than adults, 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." Id. at 2104 (internal citation omitted). The Court distinguished earlier statements it had made which appeared to weigh impressionability in its decisions, (1) explaining that those cases involved state advancement of religion. The Court deliberately minimized the significance of such statements in the Equal Access arena: "[W]e did not suggest that, when the school was not actually advancing religion, the impressionability of students would be relevant to the Establishment Clause issue." Id. at 2105. Furthermore, the Court aptly noted that in considering whether the community would feel coercive pressure to participate in the Club's activities "the relevant community would be the parents, not the elementary school children" because it is the parents who choose whether their children attend the Club's acitivites. Id. at 2104. The Court also explained that the danger of misperception could cut both ways:
[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.
Id. at 2106. Finally, the Court refused to employ what it called a "modified heckler's veto" that would proscribe religious activity based on "what the youngest members of the audience might misperceive." Id.
B. Good News Has Important First Amendment Implications
The most significant implication of Good News was the repudiation of misguided public forum jurisprudence, not only in the Second Circuit, but in the Fifth and Ninth Circuits as well.(2) See e.g., Gentala v. Tucson, 244 F.3d 1065 (9th Cir. 2001); Campbell v. St. Tammany Sch. Bd., 206 F.3d 482 (5th Cir. 2000); Bronx v. Household of Faith v. Community School District, 127 F.3d 207 (2d Cir. 1997). In doing so, the Court expressly endorsed the public forum analysis employed by the Eighth and Tenth Circuits in Good News/Good Sports Club v. School Dist. of Ladue, 28 F.3d 1501 (8th Cir. 1994) and Church on the Rock v. Albuquerque, 84 F.3d 1273 (10th Cir. 1996), respectively. Good News, 121 S. Ct. at 2099.
Before Good News, the errant public forum doctrine, advocated most prominently by the Second Circuit, upheld facilities use policies which excluded "religious use" by characterizing the particular facility as a limited public forum, and then excluding religious speech under the guise of a valid content-based, subject matter restriction. This argument rests on a supposed distinction between the discussion of secular subjects from a religious viewpoint, deemed permissible, and religious speech, often labeled as religious instruction, prayer, or worship, deemed impermissible.
Justice Scalia, concurring in Good News, illustrated the impossible distinctions required when a speaker may comment on a topic from a religious viewpoint but may not "independently discuss the religious premise on which its views are based." Id. at 2109 (Scalia, J., concurring). "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." Id.
With Good News, the Supreme Court has resolved, once and for all, the standards governing religious speech in a limited public forum. A policy that permits speech on certain topics, but excludes speakers whose speech it deems too religious, can no longer be justified as a permissible content-based restriction in a public forum. Rather, it constitutes impermissible viewpoint discrimination. Public schools and other government fora can no longer exclude religious instruction, prayer, or worship simply by claiming that they had not opened their facilities to that subject matter. Nor can such prohibitions be accomplished by labeling the proposed religious use a "religious service" or "proselytizing." Such labels are legally irrelevant in light of Good News. 121 S. Ct. at 2098, 2102, n. 4.
The Court also once again foreclosed the use of the Establishment Clause -- and the impressionability argument, in particular -- to justify this type of viewpoint discrimination. Neutrality demands that a public school that opens its facilities to secular groups and speakers not only may, but must, offer those facilities to religious groups and speakers on an equal basis. See, e.g., Lamb's Chapel, 508 U.S. at 395-96. By treating religious and non-religious speech equally, the government ensures that "the message is one of neutrality rather than endorsement." Mergens, 496 U.S. at 248 (plurality).
C. Good News Applied in Lower Federal Court Decisions
Subsequent case law has relied on the Good News decision for a number of legal propositions. Upholding Virginia's moment of silence statute against Establishment Clause challenge, the United States Court of Appeals for the Fourth Circuit quoted Good News to reject the impressionability argument. Brown v. Gilmore, 2001 U.S. App. LEXIS 16623, at *24-25 (4th Cir. July 24, 2001). Specifically, the court echoed the Supreme Court's holding that to validate this endorsement argument "would result in the introduction of 'a modified heckler's veto, in which . . . religious activity can be proscribed on the basis' of sincere, but utterly mistaken perceptions of state endorsement of religion." Id. at *25 (quoting Good News, 121 S. Ct. at 2106); see also Wells v. Denver, 2001 U.S. App. LEXIS 15606, at *19-20 (10th Cir. July 2, 2001) (following Good News for the same rejection of the listener's perception). The Texas Supreme Court relied on a related portion of the Good News opinion which rejected claims of coercion to participate in a program that was strictly voluntary. Williams v. Lara, 2001 Tex. LEXIS 74, at 53 (Tex. June 28, 2001).
The Fifth Circuit looked to Good News for its use of the term "limited public forum" to describe "forums opened for public expression of particular kinds or by particular groups." Chiu v. Plano Independent Sch. Dist., 2001 U.S. App. LEXIS 16592, at *30 (5th Cir. July 24, 2001) (Finding no viewpoint discrimination where school prevented distribution via school mail delivery system of parents' flyers criticizing new math program). The Court of Appeals for the Seventh Circuit cited to Good News for the proposition that "private religious speech enunciated on government property is not automatically attributed to the government." Linnemeir v. Board of Trustees of Purdue Univ., 2001 U.S. App. LEXIS 17922, at *13 (7th Cir. August 7, 2001). Finally, the Ninth Circuit followed Good News explicitly to uphold the right of another Good News Club to use the facilities of an elementary school on the same terms as other community groups. Culbertson v. Oakridge Sch. Dist. No. 76, 2001 U.S. App. LEXIS 17448 (9th Cir. August 7, 2001).
D. Conclusion
Perhaps the most significant implication of Good News is the complete eradication of the discriminatory practices employed by the Second, Fifth and Ninth Circuit Courts of Appeals. Law which, until now, has cabined religious speech into a separate and excludible category has been rejected, both in letter and spirit. The Court reaffirmed the protected status of religious speech in whatever form it may take - instruction, prayer, worship, or proselytizing - and ensured that the limited public forum can no longer be used to perpetuate unconstitutional religious discrimination.
In the wake of Good News, municipalities and school districts are not left powerless to place restrictions on their forums. It could close its schools to all outside groups (3) or impose content-based restrictions on permissible speech, as long as it fashions those restrictions in religion-neutral terms. If a school has legitimate concerns and reasons for limiting access to certain groups, they remain free to target those concerns directly. The policy struck down in Good News lacked any legitimate reason for excluding the Club's speech from its forum. As Justice Scalia succinctly put it, "'because it's religious' will not do." Id. at 2108 (Scalia, J., concurring).
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1. See, e.g., Lee v. Weisman, 505 U.S. 577, 592 (1992) ("there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools"); Board of Ed. of Westside Community Schools v. Mergens, 496 U.S. 226, 250-51 (1990) (O'Connor, J., concurring) (suggesting that younger students may not be as capable as high school students of distinguishing between government and private endorsement of religion); Edwards v. Aguillard, 482 U.S. 578, 584 (1987) (noting that students were susceptible to pressure in the classroom, particularly given their possible reliance on teachers as role models); School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 390 (1985) ("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").
2. The Court was unequivocal in its position, describing the Bronx decision of the Second Circuit as lying on the wrong side of the circuit split.
3. The Saddleback Valley Unified School District in Orange County, California did just that. In an attempt to prevent a Christian club from receiving official status, the district abolished all 29 non-curricular social and service clubs from high school campuses. Charles Anderson, School Clubs Lose Status, The Orange County Register, June 14, 2001. By September, the school board had reversed its decision. Laura Corbin, Clubs Allowed Campus Status SVUSD, The Orange County Register, September 7, 2001. Other school districts, such as the one in Marion, Massachusetts, appropriately reversed their policies of barring religious groups from school facilities. Marion Throws Out Policy Barring Religious Groups from School, The Associated Press State & Local Wire, July 6, 2001.
4. For example, a municipality can declare an area of a school or park off-limits for groups greater than 20 people. This neutral prohibition may well have the effect of limiting the area's use for religious exercises but it does so without constitutional difficulty. Only when the municipality expressly adds religious services to the list of forbidden uses does it cross a constitutional line.