Excerpt from Good News Club opinion rejecting argument that Lamb's
Chapel is distinguishable.
Milford argues that, even if its restriction constitutes viewpoint
discrimination, its interest in not violating the Establishment Clause
outweighs the Club's interest in gaining equal access to the school's
facilities. In other words, according to Milford, its restriction was
required to avoid violating the Establishment Clause. We disagree.
We rejected Establishment Clause defenses similar to Milford's in two
previous free speech cases, Lamb's Chapel and Widmar. The Establishment
Clause defense fares no better in this case. As in Lamb's Chapel, the
Club's meetings were held after school hours, not sponsored by the
school, and open to any student who obtained parental consent, not just
to Club members. As in Widmar, Milford made its forum available to
other organizations. The Club's activities are materially
indistinguishable from those in Lamb's Chapel and Widmar. Thus,
Milford's reliance on the Establishment Clause is unavailing.
Milford attempts to distinguish Lamb's Chapel and Widmar by emphasizing
that Milford's policy involves elementary school children. According to
Milford, children will perceive that the school is endorsing the Club
and will feel coercive pressure to participate, because the Club's
activities take place on school grounds, even though they occur during
nonschool hours. This argument is unpersuasive.
First, we have held that "a significant factor in upholding
governmental programs in the face of Establishment Clause attack is
their neutrality towards religion." Rosenberger, 515 U.S. at 839.
Milford's implication that granting access to the Club would do damage
to the neutrality principle defies logic. 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." Rosenberger, supra, at 839. Because allowing
the Club to speak on school grounds would ensure neutrality, not
threaten it, Milford faces an uphill battle in arguing that the
Establishment Clause compels it to exclude the Good News Club.
Second, to the extent we consider whether the community would feel
coercive pressure to engage in the Club's activities, 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. Milford does not
suggest that the parents of elementary school children would be
confused about whether the school was endorsing religion. Nor do we
believe that such an argument could be reasonably advanced.
Third, 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.
Fourth, even if we were to consider the possible misperceptions by
schoolchildren in deciding whether Milford's permitting the Club's
activities would violate the Establishment Clause, the facts of this
case simply do not support Milford's conclusion. 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.
Finally, even 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. This concern is particularly acute
given the reality that Milford's building is not used only for
elementary school children. Students, from kindergarten through the
12th grade, all attend school in the same building. There may be as
many, if not more, upperclassmen than elementary school children who
occupy the school after hours. For that matter, members of the public
writ large are permitted in the school after hours pursuant to the
community use policy. Any bystander could conceivably be aware of the
school's use policy and its exclusion of the Good News Club, and could
suffer as much from viewpoint discrimination as elementary school
children could suffer from perceived endorsement.
We are not convinced that there is any significance in this case to the
possibility that elementary school children may witness the Good News
Club's activities on school premises, and therefore we can find no
reason to depart from our holdings in Lamb's Chapel and Widmar.
Accordingly, we conclude that permitting the Club to meet on the
school's premises would not have violated the Establishment Clause.