Juris doctores or doctores divinitatis: Good News Club v. Milford Central School.

• Author: Bramwell, Austin W.

Ever since it proclaimed that there is a difference between content-based and viewpoint-based discrimination, (1) the Supreme Court has struggled to explain what that difference actually is. The Court has ruled repeatedly that the Free Speech Clause prohibits a State from restricting a speaker's access to a limited public forum on the basis of his viewpoint, (2) but at the same time it has stipulated that the State may impose restrictions on content so long as they are reasonable in light of the purposes served by the forum. (3) In consequence, the Court must often divine whether the government's decision to prevent a group from gaining access to a limited public forum constitutes content-based or viewpoint-based discrimination--a task made all the more difficult when the group seeking access to a limited public forum brings a host of establishment-clause worries in tow. (4) Recently, in Good News Club v. Milford Central School, (5) a divided Court held that a public school that opened its facilities to groups teaching morals and character development engaged in impermissible viewpoint-based discrimination when it refused to allow a Bible club to use its facilities. Although the Court decided the case correctly, it needlessly attempted the Sisyphean task of distinguishing viewpoint-based from content-based discrimination. It could have reached the same ruling using less problematic reasoning.

In 1992, Milford Central School ("Milford") adopted a policy opening its facilities to public use. (6) According to this policy, district residents could use the school for "instruction in any branch of education, learning or the arts," or for "social, civic and recreational meetings and entertainment events, and other uses pertaining to the welfare of the community." (7) The policy also prohibited use of the school's facilities "by any individual organization for religious purposes." (8)

In September 1996, Milford residents Stephen and Darleen Fournier sought permission from the Milford superintendent to hold meetings of the Good News Club, a private Christian organization, in the school cafeteria. (9) The superintendent, however, denied the Fourniers' application on the grounds that allowing the Club to use the school facilities for singing songs, hearing a Bible lesson and memorizing scripture would violate Milord's policy prohibiting use of the school facilities for religious purposes. (10) A few months later, the Milford Board of Education, upon further reviewing the Club's materials, formally rejected the Club's request. (11)

In March 1997, Ms. Fournier, her daughter, and Good News Club (collectively, "the Club") sued Milford in a United States District Court, alleging pursuant to 42 U.S.C. [section] 1983 that Milford had violated their free speech rights under the First Amendment and their equal protection rights under the Fourteenth Amendment. (12) In August 1998, the District Court granted Milford's motion for summary judgment, and rejected both the Club's free speech and equal protection claims. (13) The court found (14) that when the school opened its facilities for public use, it created a limited public forum under the forum analysis advanced in Perry Education Ass'n v. Perry Local Educators' Ass'n. (15) Applying Perry, the court concluded that any restrictions on the uses to which the forum can be put must be both reasonable and viewpoint neutral. (16) The court went on to point out that, unlike all the organizations that Milford did permit to use its facilities, the Club provided religious instruction and prayer. Thus, concluded the court, Milford was not engaging in viewpoint-based discrimination when it denied the Fourniers' request, but was merely enforcing its policy prohibiting use of its facilities for religious purposes. (17)

Upon appeal, a divided panel of the Second Circuit affirmed. (18) Writing for the majority, Judge Miner agreed with the district court that Milford's refusal to allow the Club to use its facilities did not constitute viewpoint-based discrimination, (19) and also rejected the Club's contention that Milford's policy barring any individual or organization from using its facilities for religious purposes was an unreasonable restriction. (20) Writing in dissent, however, Judge Jacobs found (21) that under the rule of Lamb's Chapel v. Center Moriches Union Free School District, (22) Milford had indeed engaged in viewpoint-based discrimination.

The Supreme Court granted certiorari and in a 5-4 decision (23) reversed the Second Circuit's ruling. Justice Thomas, writing for the majority, held that not only did Milford violate the Club's free speech rights, but also that had it allowed the Club access to school facilities, it would not have violated the Establishment Clause of the First Amendment. (24) First, Justice Thomas argued that because the Club taught morals and character development, albeit from a religious perspective, Milford's attempt to exclude the Club from using school facilities constituted viewpoint-based discrimination. (25) In this respect, according to Justice Thomas, the case was indistinguishable from Lamb's Chapel and Rosenberger v. Rector and Visitors of Univ. of Va., (26) in which the Court had ruled that a public educational institution had violated a religious group's free speech rights by refusing to extend it the same privileges as non-religious but otherwise similar groups. (27)

Second, Justice Thomas found (28) that the Court had already rejected establishment-clause defenses similar to Milford's in Lamb's Chapel and Widmar v. Vincent. (29) There was no realistic danger, according to Justice Thomas, that the relevant community would perceive Milford to be endorsing religion, (30) and, furthermore, given that the Club was merely asking to be treated neutrally with respect to its religion, it would be difficult to show that granting its request would violate the Establishment Clause. (31) Finally, Justice Thomas argued that the impressionability of children did not bear any relevance to the establishment-clause issue in this case, and, even if it did, would not have supported Milford's establishment-clause defense. (32)

Concurring with Justice Thomas's opinion, Justice Scalia agreed that Milford would not have violated the Establishment Clause had it granted the Club's request to use its facilities. (33) The possibility that students might pressure each other to participate in the Club's activities would not affect the majority's establishment-clause ruling, he argued, because peer pressure is protected by the freedom of association guaranteed by the First Amendment. (34) In addition, religious expression that is purely private and that occurs in a public forum open to all on equal terms cannot violate the Establishment Clause. (35) Finally, Justice Scalia offered an additional argument for rejecting the contention that the Club's religious activities could be distinguished from its teaching of morals and character development: if one is to teach morality from a religious perspective, Justice Scalia reasoned, one must also explain what that religious perspective is and why it is true; otherwise, the force of one's moral teachings is lost. The Club's quintessentially religious activities, therefore, were essential to its instruction in morals. (36)

Justice Breyer...