Federal court upholds New York school policy barring religious meetings

Wednesday, November 4, 1998

A public school in New York does not have to allow a religious group to use its facilities for after-school gatherings, a federal judge has ruled.

In fall 1996, a Christian missionary group sought permission to use an upstate New York middle school's cafeteria for its Good News Club meetings. Good News Clubs are operated and funded by Child Evangelism Fellowship, a national organization dedicated to “reaching children with the saving Gospel of Jesus Christ.”

The superintendent for the Milford School District denied the group's request, citing a district policy barring school premises from being used by “any individual or organization for religious purposes,” and the establishment clause of the First Amendment, which mandates a separation of church and state.

The school-use policy was also based on New York Education Law that created limited public forums in its public schools by allowing use of public school buildings by the public for “specific purposes.” This law, however, listed religious worship, instruction and fund raising as activities forbidden in public school facilities.

The Christian group promptly sued the Milford School District, challenging the policy as a violation of its free speech and religious liberty.

Late last month, a U.S. District Court upheld the school policy, concluding no constitutional rights of the group had been subverted.

U.S. District Judge Thomas J. McAvoy, noted that “limited public forums are created by government designation of a place or channel of communication for use by the public at large for assembly and speech, for use by certain speakers, or for the discussion of certain subjects.” Then he wrote that “constitutional protection in a limited public forum is afforded only to expressive activity of a genre similar to those that government has admitted to the limited public forum.”

McAvoy then concluded that Good News Clubs were not like the other groups permitted by the school district to use its facilities.

The religious club had argued before the district court that its activities were as secular in nature as those of other groups, such as Boy Scouts, Girl Scouts and the 4-H Club, which were all allowed to use school buildings, and therefore the Good News Club had been discriminated against because of its religious nature.

Steven Fourier, an instructor for Good News Clubs, said his club was composed of about 20 children, ranging from kindergarten to junior high school students. He said the only difference between his club and groups like the Boy Scouts was the inclusion of a Christian message in the group's activities.

“The club teaches moral values from a Christian perspective made meaningful by the fact that you need a relationship with Christ to fulfill these values the way God would have you fulfill them,” Fourier told the court.

McAvoy, however, said the difference was enough to justify the district's rejection of the club.

“A careful analysis of the Club's activities reveals that its 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 district's use policies,” McAvoy wrote. “A typical club meeting includes an opening prayer, singing of Christian songs, memorization and recital of Biblical verses and scripture for which the children receive prizes, a discussion based on a Bible reading, and a closing prayer.”

According to Child Evangelism Fellowship, Good News Clubs provide children ages 5 through 12 with “an opportunity to receive Jesus Christ as Savior,” and activities “that help them grow in Christ.”

McAvoy said the school district correctly applied its facilities-use policy.

“The policy is not anti-religious; it is intended to prohibit all outside groups from using district facilities for religious purposes,” McAvoy said. “A comparison of the activities between the Good News and the Boy Scouts, Girl Scouts, and 4-H Club, reveals that Good News' activities constitute religious instruction that is conceptually of a different genre than the secular subject matter dealt with by these other clubs. In failing to make this distinction [the Good News Club] misunderstands that while a limited forum may be open to certain groups, it may be permissibly closed to other groups whose activities focus on a different subject matter.”

McAvoy cited a 1997 ruling by the 2nd U.S. Circuit Court of Appeals, which includes New York, upholding a public school decision to bar a church from using its auditorium for weekly religious services. The 2nd Circuit in Bronx Household v. Community School District ruled that the New York Education Law barring religious worship in public school buildings was not anti-religious and was backed by important governmental interests.

“We think that it is reasonable in this case for a state and a school district to adopt legislation and regulations denying a church permission to use school premises for regular religious worship,” the 2nd Circuit ruled. “Finally, it is certainly not unreasonable to assume that church services can be undertaken in some place of public assembly other than a public middle school in New York City.”

Supporters of Good News Clubs maintain that other federal districts have upheld the clubs' use of school facilities.

Myron Tschetter, associate director of USA Ministries-Administration at Child Evangelism Fellowship, said that “it was unfortunate the court decided in that direction. That appears inconsistent with what other federal judges are doing across the nation.”

He said that “judges are basically holding that the clubs should have equal access to public school facilities, like the Boy Scouts and other religious groups.”

The Rutherford Institute, a conservative religious law firm based in Virginia, represented the Good News Club and was contemplating an appeal to the 2nd Circuit.

“Ultimately we would like to see the reasoning of Judge McAvoy and the reasoning of Bronx Household overturned,” Kim Gilmer, staff attorney for the Rutherford Institute, said. “It is impossible to distinguish between religious speech and worship. This is an entanglement problem for the courts to define religious speech. It is not where the courts belong or even where school districts belong.”