Amicus Curiae Brief — Good News Club v. Milford Central School

NOV 5 0 2000

No. 99-2036 :

— i CLERK

Supreme Court of the United States

g\ Goopb News CLuB, et ai.,

re) Petitioners

“> Vv.

< w* MILFORD CENTRAL SCHOOL,

ev Respondent

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF OF THE LIBERTY LEGAL INSTITUTE

AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

Of Counsel Viet D. DINH

KELLY SHACKELFORD JOHN L. CARTER

LIBERTY LEGAL INSTITUTE Counsel of Record

903 East 18th Street Viet D. DINH, LLC

Suite 230 120 S. Fairfax St., Suite 3¢

Plano, TX 75074 Alexandria, VA 22314

(972) 423-8889 (703) 549-0049

November 30, 2000 Counsel for Amicus Curiae

_—~ + -— ——

0

TABLE OF CONTENTS

Page

EE iil

INTEREST OF AMICUS CURIAE cosccscsssecsssssvesssssesessen l

STATEMENT OF THE CASE ....0:cscccccscccscscsesssescesssesees I

SUMMARY OF ARGUMENT .........:00cccsecsscsssesseseeseeees 2

| PETTITT vciiisieissiieviiteiniieabaiiiaiaiigaiepaaasitetanstaiate 4

I. RESPECTING THE GOOD NEWS CLUB’S

RIGHT OF EQUAL ACCESS TO SCHOOL

FACILITIES WOULD SEND A MESSAGE OF

NEUTRALITY TOWARD AND NOT EN-

DORSEMENT OF RELIGION .............:c000000008 4

A. Providing Equal Access Sends a Message of

Neutrality, Whereas Exclusion Bespeaks

Hostility Toward Religion ............cc0eeeeeee 5

B. Granting the Good News Club Equal Access

to School Facilities Would Not Implicate the

Prohibition on Direct Aid to Religion.......... 9

| ll. THE IMPRESSIONABILITY OF SCHOOL-

CHILDREN IS IRRELEVANT TO THE

ENDORSEMENT ANALYSIS .............:0000e000008 12

A. Impressionability Works Both Ways:

Schoolchildren Would Interpret the

Exclusion of the Good News Club as

Disapproval of Religious Viewpoints.......... 14

—_ —

B. Constitutionality Turns on the Objective

Perceptions of a Hypothetical Reasonable,

Informed Observer and Not on_ the

Subjective Impressions of Particular

_ ___ SRG ONC Se 15

ii

TABLE OF CONTENTS—Continued

Page

C. Schoolchildren, However “linpressionable,”

Would Not Misinterpret the Provision of

Equal Access as an Endorsement of

SRD TREIIOND .oceveccecvensnvnecssnenenloonmisiaieneeinaianll 19

RR LIIIIIIN coceccscssececcensesnsenseennstininsenameenianansninanan 22

iii

TABLE OF AUTHORITIES

Page

Agostini v. Felton, 521 U.S. 203 (1997) ......cccccecees 12

Bellotti v. Baird, 443 U.S. 622 (1979) ..cccccccccceeesees 21

Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675

Ee 21

Board of Educ. of Kiryas Joel Vill. Sch. Dist. v.

Grumet, 512 U.S. 687 (1994).........ccccccceseeeeeeeeees 5,7

Board of Educ. of Westside Cmty. Sch. v. Mergens,

Le passim

Capitol Square Review & Advisory Board v.

GL passim

County of Allegheny v. ACLU, Greater Pittsburgh

Chapter, 492 U.S. 573 (1988)........cccccccseeseeeeeeees 15

Edwards vv. Aguillard, 482 US. 578

Ee 19

Everson v. Board of Educ. of Ewing, 330 U.S. |

Ir iiiateeetestrnterreeneeretenenncemeatencesssseseussene 1]

Ginsberg v. New York, 390 U.S. 629 (1968).......... 21

Good News Club v. Milford Cent. Sch., 202 F.3d

a 1, 2, 5, 6, 8, 18

Good News Club v. Milford Cent. Sch., 21 F. Supp.

| 2,8

Hazelwood Sch. Dist. v. Kuhimeier, 484 U.S. 260

nS iadaitieitereetadeierreareceenecatnesesnessenesensscesecs 21

Hunt v. McNair, 413 U.S. 734 (1973).....cccccccceeceeee 1]

Illinois ex vel. McCollum v. Board of Educ. of Sch.

Dist. No. 71, 333 U.S. 203 (1948) .......cccccccceeeees 19

Lamb's Chapel v. Center Moriches Union Free

Sch. Dist., 508 U.S. 384 (1993) .0.....ccccccecseeeeeees passim

Lee v. Weisman, 505 U.S. 577 (1992) .....cccccccceeeeeee 20, 22

Lynch v. Donnelly, 465 U.S. 668 (1984).......... 3,7, 13,14

Mitchell v. Helms, 120 §. Ct. 2530 (2000)........... 9, 11,12

New Jersey v. T.L.O., 469 U.S. 325 (1985)........00.. 21

Prince v. Massachusetts, 321 U.S. 158 (1944)...... 21

iV

TABLE OF AUTHORITIES—Continued

Page

Rosenberger v. Rector & Visitors of Univ. of Va.,

ee ee passim

Tilton v. Richardson, 403 U.S. 672 (1971)............ 11, 12

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393

U.S. 503 (1969)............. levasenenneenensapmpenasemnennns 4, 14,21

Trietley v. Board of Educ. of Buffalo, 409 N.Y.S.2d

ee 2

West Virginia State Bd. of Educ. v. Barnette, 319

as Gi Ci cencenennenecennenencateneemnmcnnmecneniemnens passim

Widmar v. Vincent, 454 U.S. 263 (1981)...........0+ 3,12

Witters v. Washington Dep't of Servs. for the

Blind, 474 U.S. 481 (1986) ..........cccccccseereeeseees 1]

OTHER AUTHORITIES

Jonathan Alter, #t’s 4:00 p.m.; Do You Know Where

Your Children Are?, NEWSWEEK, Apr. 28, 1998,

GB BD cecssssscnsscssnsnsscnsnssnsnsnmensnsumensmmmansnsneannamananns 19

JAMES ALAN Fox, U.S. DEPARTMENT OF JUSTICE,

TRENDS IN JUVENILE VIOLENCE (1996) ............. 19

Douglas Laycock, Equal Access and Moments of

Silence: The Equal Status of Religious Speech by

Private Speakers, 81 Nw. U. L. Rev. | (1986).. 22

INTEREST OF AMICUS CURIAE '

Amicus Liberty Legal Institute is an organization committed

to the defense of religious liberty and the protection of rights

under the First and Fourteenth Amendments. Among its

activities, the Institute assists individuals, students, and

organizations in challenging state restrictions on, or discrimina-

tory treatment on the basis of, religious beliefs or expression.

The decision of the Second Circuit in this case hinders the

Institute's ability to assert the right of its clients and members to

gain equal access to school facilities and other expressive fora,

regardless of the religious viewpoint contained in their message.

STATEMENT OF THE CASE

Amicus adopt the statement of the case presented in the Brief

for Petitioners. For the Court’s convenience, amicus sets forth

below the facts most salient to the analysis that follows.

In August 1992, the Milford Central School adopted the

Community Use Policy. Under the Policy, district residents may

use the school’s facilities for “holding social, civic and

recreational meetings and entertainment events and other uses

pertaining to the welfare of the community, provided that such

uses shall be nonexclusive and shall be open to the general

public.” Good News Club v. Milford Cent. Sch., 202 F.3d 502,

504 (2d Cir. 2000). Pursuant to the Policy, the Milford Central

School opened its facilities to such private organizations as the

Boy Scouts, the Girl Scouts, and the 4-H Club. See id.

The School, however, denied access to the Good News Club,

a community-based Christian youth organization. That decision

was based on an exclusion contained in the Policy: “School

' Petitioners and Respondent have consented to the filing of this brief.

Consistent with Rule 37.6, this brief has not been authored in whole or in

part by counsel for a party. No person, other than amicus, its members, or its

counsel, has made a monetary contribution to the preparation or submission

of this brief.

ee

2

premises shall not be used by any individual or organization for

religious purposes.” /d. This exclusion is essentially identical to

school district Rule 7 at issue in Lamb's Chapel v. Center

Moriches Union Free Sch. Dist., 508 U.S. 384 (1993): “The

school premises shall not be used by any group for religious

purposes.” /d. at 387.

School Superintendent Robert McGruder also based his

decision to exclude the Good News Club on an interpretation of

New York Educ. Law § 414 that precludes the use of schcol

property for religious purposes. See Good News Club v. Milford

Cent. Sch., 21 F. Supp. 2d 147, 149 (N.D.N.Y. 1998). This

interpretation is the same as the reading of § 414 addressed by

the Court in Lamb's Chapel. See 508 U.S. at 386-87 (quoting

Trietley v. Board of Educ. of Buffalo, 409 N.Y.S.2d 912, 915

(N.Y. App. Div. 1978)).

The Good News Club filed suit, alleging an infringement of

the First and Fourteenth Amendments. The district court held

that the School could properly exclude the Club because it had

not opened its facilities to religious instruction or prayer. The

Second Circuit found that the “activities of the Club clearly and

intentionally communicate Christian beliefs by teaching and by

prayer” and affirmed. Good News Club, 202 F.3d at 509. The

court suggested that exclusion of the Club’s religious message

was especially necessary because “those who attend the school

are young and impressionable.” /d. ;

SUMMARY OF ARGUMENT

This case is about equal access to physical facilities. It is not

about government aid to religion. It is not about the impression-

ability of schoolchildren.

This case is a straight-line descendant of Widmar v. Vincent.

454 U.S. 263 (1981); it is the near-identical twin of Lamb's

Chapel, supra. These antecedents establish that the Free Speech

and Free Exercise Clauses prescribe, and the Establishment

3

Clause does not proscribe, equal access to school facilities

regardless of the religious content of the speaker's message.

To decide this case, the Court need only apply the settled rule

“that schools may not discriminate against religious groups by

denying them access to facilities that the schools make available

to all.” Rosenberger v. Rector & Visitors of Univ. of Va., 515

U.S. 819, 846 (1995) (O’Connor, J.. concurring) (citing Lamb's

Chapel, supra, and Widmar, supra). Respecting the Good News

Club's right of equal access to the school’s physical facilities

would in no way contravene the prohibition on direct state

funding of religious activities. This case, therefore, is not one

that “requires courts to draw lines, sometimes quite fine,” id. at

847, in order to delimit the boundaries of competing

constitutional principles.

The impressionability of schoolchildren is irrelevant to the

endorsement analysis. It defies logic to suggest that the

government should act in a less neutral or more discriminatory

manner toward impressionable children. Impressionability

works both ways. If students would misinterpret neutrality as

endorsement, then they would doubly interpret official discrimi-

nation against the Good News Club as disapproval of its

religious message. Doubly, because first they would correctly

interpret the exclusion as evincing hostility toward religion and

second their impressionability would graft an extra layer of

intensity onto this message of disapproval. A constitution that

requires “that a government practice not have the effect of

communicating a message of government . . . disapproval of

religion,” Lynch v. Donnelly, 465 U.S. 668, 692 (1984)

(O’Connor, J., concurring), perforce prohibits a message that is

doubly effective in disapproving of religion. Neutrality through

equal access protects against both an incorrect perception of

endorsement and a justified perception of stark hostility toward

religion.

In any event, the relevant audience for any message the

school sends by erecting the forum for private speech and

4

respecting the Good News Club’s right of access thereto is the

reasonable, informed observer, and not the students. Here, as in

all forum access cases, the government sends a message only by

erecting and maintaining the forum; that message is transmitted

to the community at large and is judged by the objective

standard of the reasonable, informed observer. See Capitol

Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 780-81

(1995) (O’Connor, J., concurring in part and concurring in the

judgment).

Even if students were the relevant audience, their impres-

sionability would not lead them to misinterpret a message of

neutrality. “The proposition that schools do not endorse every-

thing they fail to censor is not complicated.”Board of Educ. of

Westside Cmty. Sch. v. Mergens, 496 U.S. 226, 250 (1990)

(plurality opinion). There is little reason to assume that children

who can exercise the right to protest against the Vietnam War,

see Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503,

514 (1969), or to refuse, based on religious scruples, to salute

the flag, see West Virginia State Bd. of Educ. v. Barnette, 319

U.S. 624, 642 (1943), cannot appreciate that neutrality means

neutrality. Any confusion in this simple message would not be

cleared up by discrimination. Schools have a pedagogical

obligation to educate students about the Constitution, not to

violate it.

ARGUMENT

I. RESPECTING THE GOOD NEWS CLUB’S

RIGHT OF EQUAL ACCESS TO SCHOOL

FACILITIES WOULD SEND A MESSAGE OF

NEUTRALITY TOWARD AND NOT ENDORSE-

MENT OF RELIGION.

Any message sent by respecting the Good News Club’s right

of equal access would be “one of neutrality rather than

endorsement; if a State refused to let religious groups use

facilities open to others, then it would demonstrate not neutral-

5

ity but hostility toward religion.” Mergens, 496 U.S. at 248

(plurality opinion). The Good News Club asks only that the

Milford Central School provide access to its facilities equally to

private organizations, that the school remain neutral as to the

secular or religious content of their message. To deny this

simple request, as the school did, is to impermissibly “treat

people differently based on the God or gods they worship, or do

not worship.” Board of Educ. of Kiryas Joel Vill. Sch. Dist. v.

Grumet, 512 U.S. 687, 714 (1994) (O’Connor, J., concurring in

part and concurring in the judgment).

Fealty to neutrality in this case would not brush up against the

prohibition of direct aid to religion. In order to remain neutral

here, the government would not need to fund religious activities

directly. The school would need only to provide access on equal

terms to religious and nonreligious groups alike. This case,

therefore, is a garden-variety facilities access case controlled by

Lamb's Chapel and Widmar.

A. Providing Equal Access Sends a Message of

Neutrality, Whereas Exclusion Bespeaks Hostility

Toward Religion.

The School has created a forum to further secular purposes by

opening school doors for “holding social, civic and recreational

meetings and entertainment events and other uses pertaining to

the welfare of the community.” Good News Club v. Milford

Cent. Sch., 202 F.3d 502, 504 (2d Cir. 2000). Granting religious

groups access to the forum does not violate the Establish

ment Clause because “the message is one of neutrality rather

than endorsement.” Mergens, 496 U.S. at 248 (plurality

opinion).

Respecting the Club’s right of access would say only that the

School is consistent and neutral in applying the Community Use

Policy, that it neither endorses nor approves of the Club’s

message. “Under these circumstances, as in Widmar, there

would have been no realistic danger that the community would

6

think that the District was endorsing religion or any particular

creed, and any benefit to religion or to the Church would have

been no more than incidental.” Lamb's Chapel, 508 U.S. at 395;

see also Widmar, 454 U.S. at 274 (“[A]n open forum in a public

university does not confer any imprimatur of state approval on

religious sects or practices.”’). “When an individual speaks in a

public forum, it is reasonable for an observer to attribute the

speech, first and foremost, to the speaker,” Capitol Square

Review & Advisory Bd. v. Pinette, 515 U.S. 753, 786 (1995)

(Souter, J., concurring in part and concurring in the judgment),

and thus in creating the forum the school “does not thereby

endorse or promote any of the particular ideas aired there.”

Widmar, 454 U.S. at 272 n.11.

That access does not equal endorsement is readily apparent

here, where groups such as the Boy Scouts, the Girl Scouts, and

the 4-H Club had used school property well before the Good

News Club sought to hold meetings there. In this case, as in

Lamb's Chapel, “District property had repeatedly been used by a

wide variety of private organizations.” 508 U.S. at 395.

Granting the Club access would simply put it on par with other

private organizations and require it to compete with other

groups so that its message would be heard and heeded. In this

cacophonous bazaar, “any perception that the [school] endorses

one particular viewpoint would be illogical.” Rosenberger v.

Rector & Visitors of Univ. of Va., 515 U.S. 819, 850 (1995)

(O'Connor, J., concurring). The only natural perception would

be that the school, by creating the forum, has remained neutral

ihrough a hands-off policy.

But, of course, the School did not keep its hands off this

particular forum. Rather, it expressly silenced religious voices

by excluding them: “School premises shall not be used by any

individual or organization for religious purposes.” Good News

Club, 202 F.3d at 504,

Exclusion bespeaks hostility: “Withholding access would

leave an impermissible perception that religious activities are

7

disfavored.” Rosenberger, 515 U.S. at 846 (O'Connor, J.,

concurring). The words and actions of the School in this case

project a clear message to the community that religion is a

second-class viewpoint on moral and personal development, not

worthy to share company with secular private organizations.

“[I]f a State refused to let religious groups use facilities open to

others, then it would demonstrate not neutrality but hostility

toward religion.” Mergens, 496 U.S. at 248 (plurality opinion).

Such discrimination is unconstitutional. “The Religion

Clauses prohibit the government from favoring religion, but

they provide no warrant for discriminating against religion.”

Kiryas Joel, 512 U.S. at 717 (O'Connor, J., concurring in part

and concurring in the judgment) (emphasis in original). Because

“government generally may not treat people differently based on

the God or gods they worship, or do not worship,” id. at 714, the

Court has consistently required that “a government practice not

have the effect of communicating a message of endorsement or

disapproval of religion.” Lynch v. Donnelly, 465 U.S. 668, 692

(1984) (O'Connor, J., concurring); see also Rosenberger, 515

U.S. at 846 (O’Connor, J., concurring) (“This insistence on

government neutrality toward religion explains why we have

held that schools may not discriminate against religious groups

by denying them equal access to facilities that the schools make

available to all.”’).

This is not a case “where religious speech threatens to

dominate the forum.” Rosenberger, 515 U.S. at 850-51

(O’Connor, J., concurring). The school facilities are used by

private groups such as the Girl Scouts, the Boy Scouts, and the

4-H Club. The Good News Club would compete with these and

other groups for space and time allocation, the students’ interest,

and, yes, their agreement with the Club’s message. Such robust

competition in a relatively open forum minimizes the risk that

“a private religious group may so dominate a public forum that

a formal policy of equal access is transformed into a

demonstration of approval.” Capitol Square, 515 U.S. at 777

8

(O’Connor, J., concurring in part and concurring in the judg-

ment).

None of the red flags that would signal forum domination—

“the fortuity of geography, the nature of the particular public

space, or the character of the religious speech at issue,” id. at

778—are raised in this case. On the contrary, the specific

characteristics of the forum at issue here significantly minimize

the danger of religious domination. The Milford Central School

is just like the public schools the Court has seen in past equal

access cases; it teaches children of all ages from kindergarten

through high school. The Good News Club requested access

not to classroom facilities but to the school cafeteria, see Good

News Club vy. Milford Cent. Sch., 21 F. Supp. 2d 147, 149

(N.D.N.Y. 1998), anon-instructional space used by students of

all grades. For the period when the District Court’s preliminary

injunction granted the Club access to school facilities, meetings

were held in an upper-level resource room: “one half of it is for

a high school resource room, the other half is taught by another

special education teacher for kids that are slightly younger than

high school age, 12 and 13 years.” J.A. N12-N13 (testimony of

Peter Livshin). Participation in the Good News Club would

occur after school, outside of instructional class time, and would

require written parental permission. See Good News Club v.

Milford Cent. Sch., 202 F.3d 502, 507 (2d Cir. 2000).

Moreover, the Good News Club advocates morals from a

Christian perspective just as the films in Lamb's Chapel

promoted child rearing according to Christian family values.

The Second Circuit distinguished religious viewpoint from

religious instruction and held that the Good News Club falls

into the latter category because it adds an “additional layer” of

religiosity to its moral message by insisting that “these morals

or these values are senseless without Christ.” Good News Club,

202 F.3d at 509-10. This distinction, however, is logically

meaningless and constitutionally problematic. The Good News

Club’s call to faith is no different from an entreaty for “return-

9

ing to traditional, Christian family values instilled at an early

stage.” Lamb's Chapel, 508 U.S. at 388. Any viewpoint worth

its salt asserts its truth; all theories entreat adherence; and all

teachings seek converts. Moreover, “[t}here is no indication

when ‘singing hymns, reading scripture, and teaching biblical

principles’ cease to be ‘singing, teaching, and reading’—all

apparently forms of ‘speech,’ despite their religious subject

matter—and become unprotected ‘worship.’” Widmar, 454 U.S.

at 270 n.6. Allowing (or requiring, as the Second Circuit would)

school officials to make these fine metaphysical distinctions

invites excessive entanglement with religion and heightened

viewpoint discrimination.

B. Granting the Good News Club Equal Access to

School Facilities Would Not Implicate the

Prohibition on Direct Aid to Religion.

Governmental neutrality toward religion, “one hallmark of

the Establishment Clause,” Rosenberger, 515 U.S. at 846

(O’Connor, J., concurring), holds even in a hard case, where

faithful application of the neutrality principle brushes up against

the prohibition on direct aid to religion. That situation “requires

courts to draw lines, sometimes quite fine,” id. at 847, in order

to delimit the boundaries of competing constitutional principles.

See Mitchell v. Helms, 120 S. Ct. 2530, 2560 (2000) (O’Connor,

J., concurring in the judgment) (“Our school-aid cases often

pose difficult questions at the intersection of the neutrality and

no-aid principles and therefore defy simple categorization under

either rule.”’).

This is not that hard case. The Court need not draw any new

boundaries here. It need only hew to the clear line of precedent

established by Widmar, Lamb's Chapel, and other equal access

cases. Respecting neutrality in this case would in no way

implicate the traditional prohibition on direct funding of

religious activities. Any benefit flowing to religion from the

provision of equal access to school facilities is neither direct nor

funding.

10

The Court’s Establishment Clause cases draw two distinctions

in addressing cases dealing with governmental assistance, most

notably for educational purposes. The first is whether the

assistance is in kind or in money. Where the government gives

money to religious organizations, the Court asks the second

question, whether the funding is direct or indirect. Both

inquiries serve the same purpose—to ensure that the

government does not take money from some taxpayers and give

to others to finance their religious activities,

Access to school and other public facilities falls on the

constitutional side of both these distinctions; denial of access,

on the other hand, violates the religious speaker’s Free Speech

and Free Exercise rights and the Establishment Clause prohibi-

tion on government discrimination against religion.

First, by providing access to its facilities, the school would

not be funding the religious activities of the Good News Club.

The constitutional concern is that the government is using its

coercive power to require one taxpayer to finance the religious

activities of another. See Rosenberger, 515 U.S. at 851

(O'Connor, J., concurring) (distinguishing student activities fees

from “general assessments in support of religion that lie at the

core of the prohibition against religious funding and from

government funds generally”) (citations omitted).

That concern is not present where the government provides

nonmonetary benefits to religious and nonreligious groups alike

in a neutral program, such as the provision of equal access to

school facilities. Because no government funds flow to the

religious group, there is little danger that the government is

financing private worship. Access does not require the state to

open its coffers, only that the school open its doors. Facilities

access cases instead pose a different constitutional danger:

“Withholding access would leave an impermissible perception

that religious activities are disfavored.” /d. at 846.

Second, giving the Good News Club access to the school’s

physical facilities would not provide direct support to religion.

Rather, any benefit to the Good News Club would only be

incidental to the direct secular goal of establishing a neutral

forum for healthy expression of views under the First

Amendment.

Even where the state funds religious groups, such monetary

payments are permissible if the aid to religion is indirect. In

Witters v. Washington Dep't of Servs. for the Blind, 474 U.S.

481 (1986), the Court unanimously upheld state payment of a

blind student’s tuition at a sectarian theological institution. The

Court emphasized that the tuition money “is paid directly to the

student, who transmits it to the educational institution of his or

her choice.” /d. at 487. Likewise, the Court approved state

reimbursement of children’s bus fares to attend Catholic

schools. See Everson v. Board of Educ. of Ewing, 330 U.S. 1,

17-18 (1947). That the funding to the religious schools was

indirect permits the injection of the critical element of private

decisionmaking: “The aid to religion at issue here is the result of

petitioner’s private choice.” Witters, 474 U.S. at 493 (O’Connor,

J., concurring in part and concurring in the judgment). Any

“endorsement of the religious message is reasonably attributed

to the individuals who select the path of the aid” and not those

who simply distribute such aid. Mitchell, 120 S. Ct. at 2559

(O’Connor, J., concurring in the judgment).

The distinction between direct and indirect funding underlies

the Court’s insistence that “secular government aid not be

diverted to the advancement of religion.” /d. at 2558. The Court

in Tilton v. Richardson, 403 U.S. 672, 683 (1971), upheld

federal building subsidies to religious institutions only with the

insistence that the subsidized buildings not be used for religious

purposes. However, the “Court has similarly rejected ‘the

recurrent argument that all aid [to parochial schools] is forbid-

den because aid to one aspect of an institution frees it to spend

its other resources on religious ends."” Widmar, 454 U.S. at 275

n.15 (quoting Hunt v. McNair, 413 U.S. 734, 743 (1973))

(alterations in original), That is why “nothing in Ti/ton sug-

gested a limitation on the State’s capacity to maintain open

}?

forums equally open to religious and other discussions.” /d. at

272 n.12.

Respecting religious speakers’ right of access to an expres-

sive forum does not have the primary effect of advancing

religion. Rather, any benefit to religion is “merely incidental” to

the goal of establishing an expressive forum, even if it is

“foreseeable” that religious groups would seek access to the

forum, See id. at 273. Thus, the Court in Agostini v. Felton, 521

U.S. 203 (1997), upheld New York's Title I funding program

because “the aid is allocated on the basis of neutral, secular

criteria that neither favor nor disfavor religion, and is made

available to both religious and secular beneficiaries on a

nondiscriminatory basis.” /d. at 231, Under those circumstances,

the “aid is less likely to have the effect of advancing religion.”

ld.

This case, of course, is steps removed from school aid cases

like Agostini and Mitchell. The school is public and not a

private religious institution. No funds go to religious organiza-

tions. If the Constitution permits religious organizations to

obtain access to generally available government programs in

those cases, as the Court has rightly held, then it requires such

access here because “schools may not discriminate against

religious groups by denying them equal access to facilities that

the schools make available to all.” Rosenberger, 515 U.S. at 846

(O'Connor, J., concurring). Indeed, this case is easier than

Rosenberger because the Good News Club seeks equal access to

school facilities and not to government funds. Here, no

“bedrock principles collide,” id. at 852, and the Court need only

stay the course charted by Widmar and Lamb's Chapel.

ll. THE IMPRESSIONABILITY OF SCHOOLCHIL-

DREN IS IRRELEVANT TO THE ENDORSE-

MENT ANALYSIS.

There is no logical reason why a message of neutrality

changes to one of religious endorsement because schoolchildren

are “impressionable.” Impressionability works both ways. If

13

schoolchildren are indeed impressionable, then they would be as

susceptible to perceiving any action that disfavors religious

speech as disapproval of religion as they would be to perceiving

any action that favors religious speech as endorsing religion.

Access to school facilities on equal terms, neither favoring nor

disfavoring religious speech, avoids the danger of both types of

impressions. If schoolchildren, or any other persons, would

misinterpret neutrality as endorsement, then they would doubly

interpret official discrimination against the Good News Club as

disapproval of its religious message. They would correctly

interpret the exclusion as evincing hostility toward religion.

Their putative impressionability would then graft an extra layer

of intensity onto this message of disapproval. If impressionabil-

ity mattered, then denying the Good News Club access would

indeed doubly violate the requirement “that a government

practice not have the effect of communicating a message of

government . . . disapproval of religion.” Lynch v. Donnelly, 465

U.S. 668, 692 (1984) (O’Connor, J., concurring).

In any event, the relevant audience for any message the

school sends by erecting the forum for private speech and

providing equal access thereto is the reasonable, informed

observer, and not the students. By providing equal access, the

government simply sends a message to the community at large.

That message is judged from the perspective of a hypothetical

observer who is well informed and reasonable. Capitol Square,

515 U.S. at 773, 780 (O’Connor, J., concurring in part and

concurring in the judgment). To focus on the impressionability

of schoolchildren here would be to abandon the objective

standard of a hypothetical observer in favor of the subjective

impressions of specific persons who by happenstance observe

the government action.

Even if students were the relevant audience, neutrality does

not transform into endorsement when viewed by impressionable

eyes. “The proposition that schools do not endorse everything

they fail to censor is not complicated.” Board of Educ. of

14

Westside Cmty. Sch. v. Mergens, 496 U.S. 226, 250 (1990)

(plurality opinion). A child is not “a dimwit as a matter of law.”

Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753,

785 (1995) (Souter, J., concurring in part and concurring in the

judgment). There is little reason to assume that children who

can exercise the right, say, to protest against the Vietnam War,

see Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503,

514 (1969), or to refuse, based on religious objections, to salute

the flag, see West Virginia State Bd. of Educ. v. Barnette, 3\9

U.S. 624, 642 (1943), cannot appreciate that neutrality means

neutrality.

A. Impressionability Works Both Ways: Schoolchil-

dren Would Interpret the Exclusion of the Good

News Club as Disapproval of Religious View-

points. :

Any argument against equal access predicated upon the

schoolchildren’s impressionability crumbles under its own

weight. An impressionable person would more readily perceive

the denial of access to school facilities as a message of hostility

toward the Club’s religious viewpoint. The Establishment

Clause requires “that a government practice not have the effect

of communicating a message of government endorsement or

disapproval of religion.” Lynch v. Donnelly, 465 U.S. 668, 692

(1984) (O'Connor, J., concurring). If the age and maturity of

children mattered, then they would matter for deviations in both

directions from the neutral benchmark, toward either impermis-

sible endorsement or impermissible disapproval. Respecting

neutrality protects against both dangers.

In fact, an argument that impressionable children would

misconstrue a neutral message as one of religious endorsement

works doubly against its proponents. If impressionability is so

strong that it would, by its own force, move a child’s perception

away from the baseline of neutrality into the realm of endorse-

ment, then its strength would double the perception that denial

of access sends a message of hostility toward religion. Children

15

would first correctly perceive the discrimination against the

Good News Club as a message of disapproval; “if a State

refused to let religious groups use facilities open to others, then

it would demonstrate not neutrality but hostility toward reli-

gion.” Mergens, 496 U.S. at 248. Impressionability would graft

onto this correct perception an extra layer of intensity that no

amount of naysaying by schoo! administrators could plausibly

counteract.

At its core, the Establishment Clause is about the value of

inclusion in our pluralistic society. “If government is to be

neutral in matters of religion, rather than showing either

favoritism or disapproval towards citizens based on their

personal religious choices, government cannot endorse the

religious practices and beliefs of some citizens without sending

a clear message to nonadherents that they are outsiders or less

than full members of the political community.” County of

Allegheny v. ACLU, Greater Pittsburgh Chapter 492 U.S. 573,

627 (1989) (O’Connor, J., concurring). Correspondingly, the

government cannot disapprove of the religious practices and

beliefs of adherents without sending a clear message that they

are outsiders and less than full members of the political commu-

nity. The clarity of the message of hostility is only sharpened

when delivered to impressionable schoolchildren.

B. Constitutionality Turns on the Objective Per-

ceptions of a Hypothetical Reasonable, Informed

Observer and Not on the Subjective Impressions

of Particular Persons.

In any event, the suggestion that the impressionability of

schoolchildren matters in this case rests on a fundamental

fallacy—that the students are the relevant audience for constitu-

tional analysis. Endorsement instead is determined by an

objective standard of a hypothetical reasonable observer and not

the subjective perceptions of particular persons. Thus, whether

the government message in this case endorses religion depends

not on the impressions of students but on the objective

16

perceptions of a reasonable observer. This hypothetical observer

is not impressionable or obtuse, but well-informed and “aware

of the history and context of the community and forum.”

Capitol Square, 515 U.S. at 780 (O’Connor, J., concurring in

part and concurring in the judgment).

Whether the government has endorsed religion turns on the

objective perceptions of the reasonable observer, and not on the

subjective impressions of any specific person or group of

persons. See id. at 773. Constitutionality therefore does not

depend on the perspective of an “eggshell” observer or, indeed,

of any particular observer. As Justice O’Connor explained, “we

do not ask whether there is any person who could find an

endorsement of religion, whether some people may be offended

by the display, or whether some reasonable person might think

the State endorses religion.” /d. (internal quotations and

alterations omitted).

In this case, as in Capitol Square and other equal access

cases, the state creates and maintains a forum in which private

speech can be expressed. The question, therefore, is whether by

providing religious speakers access to the forum the government

has endorsed religion. Save the possibility of forum domination

by religious speakers, the Court's answer to this question has

been consistently in the negative. that the message is “one of

neutrality rather than endorsement.” /d. at 776 (quoting

Mergens, 496 U.S. at 248 (plurality opinion)).

Observers of the government action need not participate in

the forum in order to perceive any message—of neutrality,

endorsement, or hostility—that the government sends by

creating and maintaining the forum. And, of course, the

“hypothetical” reasonable observer does not actually participate

in the forum in order to receive and judge the government

message. Therefore, particular characteristics of specific forum

participants—be they obtuse or keenly observant, impressionable

or obdurate—simply do not matter for Establishment Clause

analysis. The only government action here is the creation and

17

maintenance of the forum for such private speech; the only

message equal access sends is one of neutrality; and the

audience for this message is the community at large and not the

forum participants specifically. To account for particular

characteristics of students or other persons at the place where

the forum happens to be would be to abandon the objective

standard of the reasonable observer for the~ subjective

impressions of specific observers.

The constitutional focus on a hypothetical observer who is

informed and reasonable explains why the concurring justices in

Capitol Square did not share the concern expressed by Justice

Stevens in dissent that children may see the unattended display

of a cross and form an impression that the government was

endorsing religion. See id. at 808 n.14 (Stevens, J., dissenting)

(“But passersby, including schoolchildren, traveling salesmen,

and tourists as much as those who live next to the statehouse,

are members of the body politic, and they are equally entitled to

be free from government endorsement of religion.”). State

action does not violate the Establishment Clause simply because

“some passersby would perceive a governmental endorsement”

of religion. /d. at 779 (O’Connor, J., concurring in part and

concurring in the judgment). “There is always someone who,

with a particular quantum of knowledge, reasonably might

perceive a particular action as an endorsement of religion. A

State has not made religion relevant to standing in the political

community simply because a particular viewer of a display

might feel uncomfortable.” /d. at 780 (emphasis in original).

There is little danger in this case that a reasonable observer

would perceive that “the State’s own actions (operating the

forum in a particular manner and permitting the religious

expression to take place therein), and their relationship to the

private speech at issue, actually convey a message of

endorsement.” /d. at 777 (emphasis in original. The plurality in

Mergens did note that “secondary school students are mature

enough and are likely to understand that a school does not

18

endorse or support student speech that it merely permits on a

nondiscriminatory basis.” 496 U.S. at 250. As explained above,

younger students would just as likely understand that neutrality

means neutrality; their impressionability works both ways to

heighten any perception of endorsement or hostility engendered

by deviations from this neutral benchmark. That students may

participate in the activities of the Good News Club only with

parental permission, see Good News Club v. Milford Cent. Sch.,

202 F.3d 502, 507 (2d Cir. 2000), eliminates any residual

danger that the school, and not the parents, is endorsing the

Club’s message.

Moreover, attributes of the forum at issue in this case miti-

gate against any perception that the state is endorsing religion to

impressionable schoolchildren. Meetings would be held after

school. The school is not an elementary school. Rather, it

teaches children from kindergarten through high school. And

The Good News Club requests access not to classroom facilities

but to the school cafeteria, a non-instructional space used by

students of all ages and grades. And while the Club has access

to school facilities under the preliminary injunction, meeting

were held in an upper-level resource room: “one half of it is for

a high school resource room, the other half is taught by another

special education teacher for kids that are slightly younder than

high school age, 12 and 13 years.” J.A. N12-N13 (testimony of

Peter Livshin). If recognizing a religious student group and

granting it equal access to classroom facilities after instructional

hours does not convey a message of endorsement, as the Court

rightly held in Mergens, then simply granting the Good News

Club, a private organization, equal access to non-instructional

space after school a fortiori would not endorse religion.

It is of littke moment that the Good News Club seeks access

to school facilities from 3:00 p.m. to 4:00 p.m. There is no

reason why it is permissible for a club to meet at 8:00 p.m. but

not earlier, when it is more convenient. The Court’s cases

clearly distinguish noninstructional time from classroom time

because the latter present “problems of ‘the students’ emulation

19

of teachers as role models’ and ‘mandatory attendance require-

ments.’” Mergens, 496 U.S. at 251 (quoting Edwards v.

Aguillard, 482 U.S. 578, 584 (1987) and citing //lisois ex rel.

McCollum v. Board of Educ. of Sch. Dist. No. 71 , 333 U.S. 203,

209-10 (1948)). None of those problems are presented in this

case because no teachers are involved and attendance is entirely

voluntary, with parental permission.

And there is good reason for parents to want their children to

participate in afterschool youth activities such as those offered

by the Scouts, the 4-H Club, the Good News Club, and other

private organizations. “[T]Jhe prime-time for juvenile crime is

during the afterschool hours, and. . . . specifically, 40 percent of

the juvenile violent offenses occurred after 3 PM and before 8

PM.” JAMES ALAN Fox, U.S. DEPARTMENT OF JUSTICE,

TRENDS IN JUVENILE VIOLENCE 3 (1996). “It doesn’t take a

Ph.D. to figure out that young people need some place positive

to go afterschool to stay off the streets and out of their empty

homes.” Jonathan Alter, /t’s 4:00 p.m.; Do You Know Where

Your Children Are?, NEWSWEEK, Apr. 28, 1998, at 29.

Nothing stops schools from opening their premises on a

nondiscriminatory basis so that outside groups can provide

programs for children during the time period when parental

demand is highest. Nothing in the Constitution forces the

school to close its facilities to religious groups, and religious

groups alone, during children's waking hours. Any message that

the school would send by such equal access is one of neutrality,

that the school respects the work of the private organizations

without regard to their religious viewpoints, or lack thereof.

C. Schoolchildren, However ‘“Impressionable,”

Would Not Misinterpret the Provision of Equal

Access as an Endorsement of Religion.

The impressionability of schoolchildren would not lead them

to misinterpret a message of neutrality. “The proposition that

schools do not endorse everything they fail to censor is not

complicated.” Mergens, 496 U.S. at 250 (plurality opinion). The

20

simplicity of this proposition is even more apparent when a

school provides a variety of groups equal access to its facilities.

The school cannot be seen as endorsing the diverse (and

potentially conflicting) views of all the groups. If children are

impressionable to one group's message, then they are equally

impressionable to those of the other groups. Impressionability

thus would enhance the clarity of conflict among the viewpoints

of the various speakers vying for the children’s attention and

agreement and, if anything, would better underscore the

neutrality of the school’s hands-off policy.

Permission does not equal endorsement. That is especially

true in the educational context, where space is needed for

student expression that is neither enjoined nor endorsed by the

school. “The First Amendment's Religion Clauses mean that

religious beliefs and religious expression are too precious to be

either proscribed or prescribed by the State.” Lee v. Weisman,

505 U.S. 577, 589 (1992). Providing such an expressive space

by allowing equal access to school facilities does not implicate

the school in any speech that may be delivered in that forum.

See Widmar v. Vincent, 454 U.S. 263, 272 n.10 (1981) (noting

that “by creating a forum the University does not thereby

endorse or promote any of the particular ideas aired there”). The

reason for this is simple: “When an individual speaks in a public

forum, it is reasonable for an observer to attribute the speech,

first and foremost, to the speaker,” Capitol Square Review &

Advisory Bd. v. Pinette, 515 U.S. 753, 786 (1995) (Souter, J.,

concurring in part and concurring in the judgment).

That the school does not endorse the message of private

speakers is especially clear where, as here, the forum accommo-

dates a variety of divergent viewpoints. The Scouts advocate

moral and personal development through service and devotion

to God and country; the 4-H Club through agrarian pursuits; the

Good News Club through a life in Christ. Given this wide array

of viewpoints, “any perception that the [school] endorses one

particular viewpoint would be illogical.” Rosenberger v. Rector

21

& Visitors of Univ. of Va., 515 U.S. 819, 850 (1995) (O'Connor,

J., concurring). The illogic of such a perception is only more

apparent in the eyes of “impressionable” schoolchildren. If

children are impressionable to the message of the Good News

Club, then they would be equally impressionable to that of the

Scouts, the 4-H Club, and whomever else may use the school

facilities.

The suggestion of impressionability betrays a suspicion of

children unsupported by the Court’s precedent. A child has the

right, based on religious scruples, not to salute the flag. See

West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642

(1943). The Court did not assume that children were too

impressionable to appreciate their freedom of religious expres-

sion and to exercise their right not “to declare a belief.” /d. at

631. Nor was there any suggestion that classmates would

perceive permission to abstain from saluting the flag as an

endorsement of the objecting student's religion. Likewise, the

Court respected children’s right to protest against the war in

Vietnam, see Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393

U.S. 503, 514 (1969), without concern that the impressionability

of children would distort the message.

To be sure, certain characteristics—"“the peculiar vulnerabil-

ity of children; their inability to make critical decisions in an

informed, mature manner; and the importance of the parental

role in child rearing,” Bellotti v. Baird, 443 U.S. 622, 634

(1979) (plurality opinion)}—may justify different treatment of

children. This solicitude of children’s immaturity, however,

stems from the need to protect them from societal threats, See

Ginsberg v. New York, 390 U.S. 629, 638 (1968) (obscenity);

Prince v. Massachusetts, 321 U.S. 158, 168 (1944) (child

safety); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266

(1988) (disruption of school); Bethel Sch. Dist. No, 403 v.

Fraser, 478 U.S. 675, 682 (1986) (same); New Jersey v. T.L.O.,

469 U.S. 325, 346-48 (1985) (same). Here, the only threat

presented is that children, who attend meetings voluntarily with

22

parental permission, would agree with the message of one or the

other speakers in the school’s forum. That is not a threat. It is

the First Amendment working, and well.

All this, of course, is not to deny that schoolchildren are

different from adults or that schools have an important role in

their development. It is precisely because children are still in the

formative stages of life that the right message must be sent by

school officials and state action. That right message is straight-

forward: “The First Amendment's Religion Clauses mean that

religious beliefs and religious expression are too precious to be

either proscribed or prescribed by the State.” Lee v. Weisman,

505 U.S. 577, 589 (1992).

Clearing up any confusion in this message is the essence of

civ te education: “the risk of misunderstanding can be minimized

by explaining what is misunderstood—by teaching students

about the values of free speech, public fora, disestablishment,

and government neutrality toward religion.” Douglas Laycock,

Equal Access and Moments of Silence: The Equal Status of

Religious Speech by Private Speakers, 81 Nw. U. L. REv. 1, 20

(1986). Especially where children are impressionable, schools

have a pedagogical obligation to educate them about the

Constitution, not to violate it.

CONCLUSION

For the foregoing reasons, as well as those set forth in the

Brief for Petitioners, the decision below should be reversed.

Of Counsel

KELLY SHACKELFORD

LIBERTY LEGAL INSTITUTE

903 East 18th Street

Suite 230

Plano, TX 75074

(972) 423-8889

November 30, 2000

23

Respectfully submitted,

Viet D. DINH

JOHN L. CARTER

(Counsel of Record)

Viet D. DINH, LLC

120 S. Fairfax St., Suite 300

Alexandria, VA 22314

(703) 549-0049

Counsel for Amicus Curiae