Justices weigh Christian group’s appeal for access to school

Thursday, March 1, 2001

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    The Supreme Court yesterday appeared troubled by a New York public school system’s policy that kept a Christian youth club from meeting on school premises after class hours because its meetings were “too religious.”

    Several justices seemed to view the Milford, N.Y., ban as a form of discrimination against religion, when other organizations such as the Boy Scouts are allowed to meet at the school.

    But the outcome of the case of Good News Club v. Milford Central School was difficult to predict, in part because several justices seemed frustrated by the apparent vagueness of the policy and other aspects of the case. Some wondered aloud whether school officials could simply redesign the policy to forbid outright religious worship, while still allowing clubs with a mere religious orientation to meet for nonworship purposes.

    The case is important not only because of the echoes it might have in the debate over President Bush’s “faith-based” initiative, but because an increasing number of schools nationwide have opened their doors to religious clubs to meet and even to churches to conduct services on weekends.

    “We’re not asking for unique access, just equal access,” said New York lawyer Thomas Marcelle, representing the club. He urged the court to view the case as a free-speech case, rather than a test of the First Amendment’s religion clauses.

    But several justices resisted his urging and tried to analyze it in terms of the establishment clause, which bars government “establishment of religion.”

    Justices Ruth Bader Ginsburg and David Souter asked why lower courts had not dealt with the age of the students at the school in question. The students were so young, the justices suggested, that they might be susceptible to thinking that the school was endorsing the club’s religious message.

    “You don’t have a sophisticated group of people here,” said Souter. Ginsburg suggested that the case could be remanded to the 2nd U.S. Circuit Court of Appeals for exploration of this issue. The court in the past has said religious clubs can meet on public university property, in part because college students are old enough to discern that the state is not necessarily endorsing religion by allowing religious groups to meet there.

    Milford Central School, where the Good News Club wants to meet, includes kindergarten through 12th grades. The club, however, is for students from kindergarten through sixth grade.

    Frank Miller, lawyer for the school district, said public schools were entitled to exclude religious worship from their premises, just as they could exclude political or commercial activities. In a “limited public forum,” Miller asserted, government can “exclude the subject of religion.”

    Justice Stephen Breyer replied, “That sounds like you’re discriminating in free-speech terms against religion.”

    When Justice David Souter suggested that the club meetings, as described in briefs, sounded “more like Sunday school” than a church service, Miller replied that for young people, Sunday school is often the way in which religion is taught.

    “For children of this age, this is religious worship,” he said.

    Souter also asked whether, under Miller’s theory, a city would be obliged to refuse to open its premises to a Baptist congregation whose church had burned down.

    Yes, said Miller, adding that allowing a congregation access to a public school building “would be permitting the schoolhouse to be used as a house of worship.”

    A decision in the case could come anytime before the court recesses for the summer in late June or early July.

    Tony Mauro covers the Supreme Court for American Lawyer Media and is a legal correspondent for the First Amendment Center.

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