SEATTLE UNIVERSITY LAW REVIEWVolume 25, No. 3WINTER 2002
A Closer Look at Good News v. Milford: What Are the Implications? (Stay Tuned)
John E. Dunsford(fn*)
I. INTRODUCTION
When the United States Supreme Court releases an opinion addressing the separation of church and state, the release often triggers exaggerated emotional reactions from both sides of the cultural divide. Good News Club v. Milford Central School(fn1) was no exception. An ultra-separationist lobby, Americans United for Separation of Church and State, immediately predicted that the case would "create a battlefield out of America's elementary schools" and called it a "terrible mistake."(fn2)
Meanwhile, several national news outlets only strengthened this reaction by making sure that the holding's dull details did not get in the way of sexy reporting. For instance, ABC News broadly reported that the Supreme Court "ruled [that] religious groups must be allowed to meet in public schools after school hours,"(fn3) vaguely suggesting that the Court's decision in Illinois ex rel. McCollum v. Board of Education(fn4) had been reversed. Similarly, CBS announced that the Court redrew the lines separating church and state in public schools, a statement that implicitly announced that the dissenters in Good News Club were correct.(fn5) For those who favored the decision, they speculated that it meant future support both for President Bush's faith-based initiatives and for tuition vouchers.(fn6) However, the decision was surely not as far reaching as either its opponents or its proponents suggested.
In fact, Good News Club posed a narrow and straightforward question for the United States Supreme Court: does a public school district violate the Free Speech Clause of the First Amendment when it has a policy barring a private religious group from holding Bible classes for children after school hours, but using school facilities, while the district permits other, non-religious, private groups to use classrooms to teach children about developing character and morality?
From one perspective, we can view the case as simply replaying the earlier case of Lamb's Chapel v. Center Moriches Union Free School District.(fn7) Hence, the Court could focus on the question of whether its earlier decision controlled. From another perspective, however, the explicit religious nature of the teaching in Good News Club arguably distinguishes it from Lamb's Chapel, thus raising additional issues that the Court needed to resolve.
Six of the nine Justices concluded that the teaching of Lamb's Chapel was on point and, therefore, decided that the Milford School Board violated the First Amendment by discriminating on the basis of viewpoint. But the dissenters(fn8) eroded the unanimity of the Court in Good News Club by insisting that more than viewpoint discrimination was at stake. They not only challenged the applicability of the earlier decision, but they also raised issues concerning the nature of religious speech in the First Amendment context. Two of them even took the Milford School Board's defense that the Establishment Clause justified, and indeed required, its policy as a credible proposition.(fn9)
On first impression, the issues in Good News Club look clear, familiar, and manageable. However, like most disputes over the separation of church and state that reach the Supreme Court, the simplest questions seem to radiate larger concerns when examined more closely. In light of some of the media coverage, one might wonder whether religious citizens, particularly those who choose to engage in religious worship, represent a group of untouchables whose presence on public school property at any time is suspect. In any event, Good News Club both once again raised penetrating questions about the relationship between religion and the public schools and continued the on-going dialogue regarding the meaning of the Establishment Clause. The modest goal of this article is to scrutinize some of the implications.
In particular, this article will examine: (1) whether Lamb's Chapel should control; (2) whether there is a relevant distinction between religious viewpoint and subject matter; (3) whether a forum open to much of the public may be limited to others; (4) whether the presence of prayer and worship should affect the right of a private organization to access public property; and (5) whether such use of public property violates the Establishment Clause.
II. Lamb's Chapel as Controlling Precedent
Both Lamb's Chapel and Good News Club were decided under the same New York law and, therefore, posed many similar questions. Under New York law, local school boards in the state may open their facilities for various public uses.(fn10) Pursuant to that power, the Milford Central School District (Milford) adopted a community use policy that, among other things, authorized the public to use its buildings after school hours for "instruction in any branch of education, learning or the arts"(fn11) and for "social, civic and recreational meetings and entertainment events, and other uses pertaining to the welfare of the community . . . ,"(fn12) Permitted uses had to be nonexclusive and open to the general public.(fn13) The policy also specified that school premises could not be used "by any individual or organization for religious purposes."(fn14)
Under this policy, the Boy Scouts, Girl Scouts, and 4-H Club were allowed to use the facilities after school hours. In its interpretation and application of the policy, Milford found no problem with programs designed to develop the character and morals of children. Moreover, undoubtedly influenced by the earlier decision in Lamb's Chapel, Milford held that an organization engaged in such activities could make its presentations from a religious viewpoint.(fn15)
In Lamb's Chapel, operating under the same authorizing New York law as in Good News Club, Center Moriches Union Free School District (the School District) had a policy similar to Milford's, which permitted members of the community to use school property outside school hours for certain purposes.(fn16) Moreover, the School District issued a rule stating that the "school premises shall not be used by any group for religious purposes."(fn17) Under the policy, an evangelical church and its pastor sought to use the facilities to show a film series containing lectures by a well-known Christian author and radio commentator. The presentation intended to discuss the effect that the media were having in undermining moral values and to urge a return to traditional Christian life with values instilled in family members at an early age. The School District denied the church's application, noting that "[t]his film does appear to be church related and therefore your request must be refused."(fn18) In a second application by the church, it described the film as a "[fjamily oriented movie-from a Christian perspective."(fn19) Again, the School District denied the request, citing the same reasons as before. Upholding the School District's decision, the lower courts in Lamb's Chapel held that, because the School District's policy had created a limited public forum, it had properly exercised its authority to exclude all uses of school property for religious use.(fn20) In that way, all religions would be treated alike, that is, excluded, and the policy would be viewpoint neutral.
Reversing the judgment of the lower court in Lamb's Chapel, the Supreme Court assumed that the forum was indeed a limited one and accepted the School District's argument that the practical application of the policy did not exclude all use of the property by religious groups.(fn21) In that regard, the School District pointed to instances in which permission had been given to (1) a New Age religious group known as the "Mind Center," (2) the Southern Harmonize Gospel singers, and (3) the Salvation Army Youth Band.(fn22) The Supreme Court concluded that, because the School District had created a limited forum allowing presentations on child rearing and family values, it could not then exclude Lamb's Chapel on the basis that its viewpoint on those subjects had a religious perspective. In other words, the School District was discriminating against a particular point of view.(fn23)
Did the decision in Lamb's Chapel control the issue in Good News Club? Milford and the lower courts did not think so. In the Good News Club case, when the club applied for permission to use the classroom facilities after school, the Milford superintendent concluded that the request was actually to use the school property for "the equivalent of religious worship . . . rather than the expression of religious views or values on a secular subject matter."(fn24) The superintendent's response may have been induced by the club's application, in which it stated that the proposed use was to have "a fun time of singing songs, hearing Bible les-son[s] and memorizing scripture."(fn25) Subsequently, the club's attorney provided Milford with a more detailed description in reply to a request for more information on the club's activities. This information was reported in the majority opinion of the Supreme Court:The Club opens its session with Ms. Fournier taking attendance. As she calls a child's name, if the child recites a Bible verse the child receives a treat. After attendance, the Club sings songs. Next Club members engage in...
