Souter: Good News Ruling Bad News for Establishment Clause (June/July 2001)

Supreme Court of the United States, No. 99-2036.

Good News Club, et al., petitioners v. Milford Central School. 
June 11, 2001

The U.S. Supreme Court lowered the wall of separation between public schools and religion in a June 11 decision ruling that public schools must give churches the right to rent elementary school classrooms directly after school is over for a club targeting students for prayer, bible stories and conversion.

In a 6-3 decision, the high court said that if school officials rent to community groups that teach “values and morals,” such as Boy Scouts or Girl Scouts, they may not exclude churches from holding clubs aimed at “saving” children.

The decision was written by Justice Clarence Thomas. A lower court which sided with the public school in Milford, New York, in rejecting the “Good News Club” rental as unconstitutional, was suggesting that “reliance on Christian principles taints moral and character instruction,” Thomas complained.

Dissenting were: Justices Stevens, Souter and Ginsburg. Justice Breyer concurred in part with Thomas’ decision.

Justice Souter’s dissent is excerpted below.

. . . Good News’s classes open and close with prayer. In a sample lesson considered by the District Court, children are instructed that “[t]he bible tells us how we can have our sins forgiven by receiving the Lord Jesus Christ. It tells us how to live to please Him. . . . If you have received the Lord Jesus as your Saviour from sin, you belong to God’s special group–His family.” The lesson plan instructs the teacher to “lead a child to Christ,” and, when reading a Bible verse, to “[e]mphasize that this verse is from the Bible, God’s Word” and is “important–and true–because God said it.” The lesson further exhorts the teacher to “[b]e sure to give an opportunity for the ‘unsaved’ children in your class to respond to the Gospel” and cautions against “neglect[ing] this responsibility.”

While Good News’s program utilizes songs and games, the heart of the meeting is the “challenge” and “invitation,” which are repeated at various times throughout the lesson. During the challenge, “saved” children who “already believe in the Lord Jesus as their Savior” are challenged to “‘stop and ask God for the strength and the “want” . . . to obey Him.'” They are instructed that

“[i]f you know Jesus as your Savior, you need to place God first in your life. And if you don’t know Jesus as Savior and if you would like to, then we will–we will pray with you separately, individually. . . . And the challenge would be, those of you who know Jesus as Savior, you can rely on God’s strength to obey Him.”

During the invitation, the teacher “invites” the “unsaved” children ” ‘to trust the Lord Jesus to be your Savior from sin,’ ” and ” ‘receiv[e] [him] as your Savior from sin.’ ” The children are then instructed that

“[i]f you believe what God’s Word says about your sin and how Jesus died and rose again for you, you can have His forever life today. Please bow your heads and close your eyes. If you have never believed on the Lord Jesus as your Savior and would like to do that, please show me by raising your hand. If you raised your hand to show me you want to believe on the Lord Jesus, please meet me so I can show you from God’s Word how you can receive His everlasting life.”

It is beyond question that Good News intends to use the public school premises not for the mere discussion of a subject from a particular, Christian point of view, but for an evangelical service of worship calling children to commit themselves in an act of Christian conversion. The majority avoids this reality only by resorting to the bland and general characterization of Good News’s activity as “teaching of morals and character, from a religious standpoint.” If the majority’s statement ignores reality, as it surely does, then today’s holding may be understood only in equally generic terms. Otherwise, indeed, this case would stand for the remarkable proposition that any public school opened for civic meetings must be opened for use as a church, synagogue, or mosque. . . .

. . . In Widmar, we held that the Establishment Clause did not bar a religious student group from using a public university’s meeting space for worship as well as discussion. As for the reasonable observers who might perceive government endorsement of religion, we pointed out that the forum was used by university students, who “are, of course, young adults,” and, as such, “are less impressionable than younger students and should be able to appreciate that the University’s policy is one of neutrality toward religion.” To the same effect, we remarked that the “large number of groups meeting on campus” negated “any reasonable inference of University support from the mere fact of a campus meeting place.” Not only was the forum “available to a broad class of nonreligious as well as religious speakers,” but there were, in fact, over 100 recognized student groups at the University, and an “absence of empirical evidence that religious groups [would] dominate [the University’s] open forum.” And if all that had not been enough to show that the university-student use would probably create no impression of religious endorsement, we pointed out that the university in that case had issued a student handbook with the explicit disclaimer that “the University’s name will not ‘be identified in any way with the aims, policies, programs, products, or opinions of any organization or its members.'”

Lamb’s Chapel involved an evening film series on child-rearing open to the general public (and, given the subject matter, directed at an adult audience). There, school property “had repeatedly been used by a wide variety of private organizations,” and we could say with some assurance that “[u]nder these circumstances . . . there would have been no realistic danger that the community would think that the District was endorsing religion or any particular creed. . . .”

What we know about this case looks very little like Widmar or Lamb’s Chapel. The cohort addressed by Good News is not university students with relative maturity, or even high school pupils, but elementary school children as young as six. The Establishment Clause cases have consistently recognized the particular impressionability of schoolchildren, see Edwards v. Aguillard, 482 U.S. 578, 583-584 (1987), and the special protection required for those in the elementary grades in the school forum, see County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 620, n. 69 (1989). We have held the difference between college students and grade school pupils to be a “distinction [that] warrants a difference in constitutional results,” Edwards v. Aguillard.

Nor is Milford’s limited forum anything like the sites for wide-ranging intellectual exchange that were home to the challenged activities in Widmar and Lamb’s Chapel. In Widmar, the nature of the university campus and the sheer number of activities offered precluded the reasonable college observer from seeing government endorsement in any one of them, and so did the time and variety of community use in the Lamb’s Chapel case.

The timing and format of Good News’s gatherings, on the other hand, may well affirmatively suggest the imprimatur of officialdom in the minds of the young children. The club is open solely to elementary students (not the entire community, as in Lamb’s Chapel), only four outside groups have been identified as meeting in the school, and Good News is, seemingly, the only one whose instruction follows immediately on the conclusion of the official school day. Although school is out at 2:56 p.m., Good News apparently requested use of the school beginning at 2:30 on Tuesdays “during the school year,” so that instruction could begin promptly at 3:00, at which time children who are compelled by law to attend school surely remain in the building. Good News’s religious meeting follows regular school activities so closely that the Good News instructor must wait to begin until “the room is clear,” and “people are out of the room,” before starting proceedings in the classroom located next to the regular third- and fourth-grade rooms. In fact, the temporal and physical continuity of Good News’s meetings with the regular school routine seems to be the whole point of using the school. When meetings were held in a community church, 8 or 10 children attended; after the school became the site, the number went up three-fold.

Even on the summary judgment record, then, a record lacking whatever supplementation the trial process might have led to, and devoid of such insight as the trial and appellate judges might have contributed in addressing the Establishment Clause, we can say this: there is a good case that Good News’s exercises blur the line between public classroom instruction and private religious indoctrination, leaving a reasonable elementary school pupil unable to appreciate that the former instruction is the business of the school while the latter evangelism is not. Thus, the facts we know . . . point away from the majority’s conclusion, and while the consolation may be that nothing really gets resolved when the judicial process is so truncated, that is not much to recommend today’s result.

Freedom From Religion Foundation