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

[Mv 7° 2ee0

No. 99-2036

In The

Supreme Court of the United States

@

THE GOOD NEWS CLUB, et al.,

Petitioners,

MILFORD CENTRAL SCHOOL,

Respondent.

¢

On Writ Of Certiorari To The

United States Court Of Appeals

For The Second Circuit

¢

BRIEF AMICI CURIAE OF CHILD EVANGELISM

FELLOWSHIP, INC., MAE CULBERTSON, LADETTE

ARMSTRONG, MARSHA HALL, MARY TOMMILA,

FAMILY RESEARCH COUNCIL, FELLOWSHIP OF

CHRISTIAN ATHLETES, AND CAMPUS CRUSADE

FOR CHRIST IN SUPPORT OF PETITIONERS

e

Grecory S. BayLor Hersert G. Grey

Counsel of Record 14355 S.W. Allen Blvd.

KiIMBERLEE Woop Co.sy Suite 100

Reuicious Liserty Beaverton, OR 97005

ADVOCATES (503) 641-4908

4208 Evergreen Lane, ——

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OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

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CORE GF RUT UIIOUED oc vccccccccccccccccsvees il

CCE? GP COU GUD Kccscccccececcccscscces 1

STATEMENE OF TREE CASE... 2... ccccccccccccenes 1

SUMMARY OF ARGUMENT...................505. 1

PE NidkKobidnseeSeKannecdennenuenscenenwes 2

I. Granting the Good News Club Equal Access to

Meeting Space Would Not Violate the Endorse-

BB EEO CCT TTT TCT TE TTT TT LTT ET Te 2

A. The Reasonable Observer Would Not Per-

ceive School District Endorsement of the

B. The Age of the Children Does Not Justify a

Different Analysis or Result ............... 7

1. Problems associated with eschewing the

EE ee 7

2. Examining children’s unreasonable mis-

perceptions is unsupported in law ..... 12

II. Granting the Club Equal Access to School Facili-

ties Does Not Pressure Students Into Participat-

ing in Religious Exercises.................+.+5: 20

SERENE nua En A ey ee ee 24

Te eieeeseeces App. 1

il

TABLE OF AUTHORITIES

Page

Cases

Abington Sch. Dist. v. Schempp, 374 U.S. 203 (1963) .... 11

Agostini v. Felton, 521 U.S. 507 (1997) .... 15, 16, 17, 18

Aguilar v. Felton, 473 U.S. 402 (1985) ..............5. 16

Board of Educ. v. Mergens, 496 U.S. 226 (1990)

er Pr 3, 16, 17, 18, 21

Capitol Square Review and Advisory Bd. v. Pinette,

SIS US. 753 (IOUS) . oo 0 0000008000050 euneee passim

County of Allegheny v. ACLU, 492 U.S. 573 (1989) .. 5, 6, 8

Edwards v. Aguillard, 482 U.S. 578 (1987) ......... 12, 14

Engel v. Vitale, 370 U.S. 421 (1962) ..... 2, 11, 13, 20, 21

Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985)

se aeesvecseeevesens see's 66 5 SiN mtn 6, 11, 12

Garnett v. Renton Sch. Dist. No. 403, 987 F.2d 641

(Sth Cie. 1995). .....cesccesssecuseuu ena 19

Grand Rapids Sch. Dist. v. Ball, 473 U.S. 373 (1985)

Ss .!.!U!tt—S 12, 15, 16, 18

Lamb's Chapel v. Center Moriches Union Free Sch.

Dist., 306 U.S. SB6 (190G) 0 ecu ncususeueu eee 3

Lee v. Weisman, 505 U.S. 577 (1992)........ 2, 13, 20, 22

Lemon v. Kurtzman, 403 U.S. 602 (1971).............. 14

Lynch v. Donnelly, 465 U.S. 668 (1984).............. 5,9

Marsh v. Chambers, 463 U.S. 783 (1983) .............. 13

McCollum v. Board of Educ., 333 U.S. 203 (1948)

aeeccceccceseceuesse eeu ei: 2, 20, 22, 23

TABLE OF AUTHORITIES —- Continued

Page

Mitchell v. Helms, 120 S. Ct. 2530 (2000).......... 13, 17

Rosenberger v. Rector of the Univ. of Virginia, 515

i Eerbbececeecscesneescescccceses 3, 17

Santa Fe Independent Sch. Dist. v. Doe, 120 S. Ct.

EEC ihre esesecdceeccece cs 2, 13, 17, 20, 22

Tilton v. Richardson, 403 U.S. 672 (1971) .......... 12, 14

Tinker v. Des Moines Independent Community Sch.

i i i CD scensconcccccceccccces 17, 18

Wallace v. Jaffree, 472 U.S. 38 (1985) .............. 11, 18

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

ELISE SSE SELES POPCTTTTETE TTT TTY 17

Widmar v. Vincent, 454 U.S. 263 (1981)...3, 4, 16, 18, 23

Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1

LIS LISS LEIS STEP OCP OPTS TELE ES 16

Zorach v. Clauson, 343 U.S. 306 (1952)............... 23

STATUTES

eee a ewecdescessooscceccces 19

OrHer MATERIALS

W. Keeton, D. Dobbs, R. Keeton, & D. Owen,

Prosser and Keeton on Law of Torts (5th ed.

INTERESTS OF THE AMICI

Certain of the amici are plaintiffs in a similar dispute

pendirg in the U.S. Court of Appeals for the Ninth Cir-

cuit. Amici Armstrong, Hall, and Tommila desire that

their children attend Good News Club meetings. They

desire that those meetings occur on the premises of

Oakridge Elementary School, for reasons of safety and

convenience.

Detailed statements of the interests of the amici curiae

are set forth in the appendix to this brief. The letters from

the parties consenting to the filing of this brief have been

filed with the Clerk of the Court.!

e

STATEMENT OF THE CASE

Amici adopt the Statement of the Case in the Brief of

Petitioners.

SUMMARY OF ARGUMENT

The School District contends that the Establishment

Clause forbids the Good News Club to meet immediately

after school hours on the premises of the Milford Central

1 Pursuant to Rule 37.6, the amici disclose that: (1) no

counsel for a party authored this brief, in whole or in part; and

(2) counsel for the amici have applied for a grant from the

Alliance Defense Fund to cover expenses in producing this

brief. ADF is a 501(c)(3) organization with offices at 8960 E.

Raintree Drive, Suite 300, Scottsdale, AZ 85260. ADF exercised

no control over the content of this brief.

School. The amici anticipate that this argument will take

two forms. First, the School District will argue that a

policy granting equal access to religious groups would

constitute an impermissible endorsement of religion. Sec-

ond, the School District has argued and presumably will

argue that allowing the Club to meet after school for

religious purposes is indistinguishable from the practices

struck down in McCollum v. Board of Education, 333 U.S.

203 (1948), Engel v. Vitale, 370 U.S. 421 (1962), Lee v.

Weisman, 505 U.S. 577 (1992), and Santa Fe Independent

School District v. Doe, 120 S.Ct. 2266 (2000).

An equal access policy would not fail the endorse-

ment test as it has been articulated, justified, and applied

in this Court’s precedents. A well-informed reasonable

observer would not infer endorsement of religion from a

policy of equal treatment. Speculation about the percep-

tions of young children does not warrant ignoring the

perceptions of the reasonable observer. Establishment

Clause values would be undermined, not served, by cen-

soring private religious speech to avoid potential mis-

impressions about the government's relationship to that

speech. Second, an equal access policy is utterly unlike

the practices invalidated in cases like McCollum, Engel,

Weisman, and Santa Fe.

S

ARGUMENT

I. Granting the Good News Club Equal Access to

Meeting Space Would Not Violate the Endorsement

Test.

In a number of cases reaching this Court, government

agencies claimed that the Establishment Clause justified

their discrimination against religious speech. Capitol

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

(1995); Rosenberger v. Rector of the Univ. of Virginia, 515

U.S. 819 (1995); Lamb's Chapel v. Center Moriches Union

Free Sch. Dist., 508 U.S. 384 (1993); Board of Educ. v.

Mergens, 496 U.S. 226 (1990); Widmar v. Vincent, 454 U.S.

263 (1981). In each, the Court held that equal treatment of

the religious speech in question would not violate the

Establishment Clause.

The non-discriminatory character of a policy govern-

ing speech was an important factor to all Justices reject-

ing the government's Establishment Clause defense. See,

e.g., Rosenberger, 515 U.S. at 839 (“a significant factor in

upholding governmental programs in the face of Estab-

lishment Clause attack is their neutrality towards reli-

gion”); id. at 846 (referring to the Court’s “insistence on

government neutrality toward religion”) (O’Connor, J.,

concurring); Pinette, 515 U.S. at 764 (“we have consis-

tently held that it is no violation for government to enact

neutral policies that happen to benefit religion”) (plu-

rality op.); id. at 775 (“[nJone of this is to suggest that I

would be likely to come to a different result from the

plurality where truly private speech is allowed on equal

terms in a vigorous public forum that the government has

administered properly”) (O’Connor, J., concurring).

In this case, Milford argues that an equal access

policy would nonetheless violate the Establishment

Clause.? To prevail, the School District must overcome the

2 The Second Circuit did not rule on Milford’s

Establishment Clause defense. Nonetheless, if the Court credits

fact that neutrality, at the very least, goes a long way

towards ensuring the validity of a policy governing pri-

vate speech. At the outset, their contention contradicts

the view held by four Justices that equal treatment of

religious speech in a public forum never violates the

Establishment Clause. See Pinette, 515 U.S. at 770 (plu-

rality op.).

Other Justices hold the view that there may be cir-

cumstances in which evenhanded policies governing pri-

vate sneech violate the Establishment Clause because

they convey a message of endorsement despite their

facial neutrality. In her concurring opinion in Pinette,

Justice O'Connor expressed her view that “an impermis-

sible message of endorsement can be sent in a variety of

contexts, not all of which involve direct government

speech or outright favoritism.” 515 U.S. at 774 (O’Connor,

J., concurring). She stated that “the Establishment Clause

forbids a State to hide behind the application of formally

neutral criteria and remain studiously oblivious to the

effects of its actions.” Id. at 777.

For example, a private religious group might so dom-

inate a public forum that “a policy of equal access is

transformed into a demonstration of approval.” Pinette,

515 US. at 777 (O’Connor, J., concurring) (citing Widmar,

454 U.S. at 275). “Other circumstances may produce the

same effect - whether because of the fortuity of geogra-

phy, the nature of the particular public space, or the

character of the religious speech at issue, among others.”

the Club’s Free Speech Clause claim, the amici encourage the

Court to decide the Establishment Clause question.

Id. at 778. For example, although the group in Pinette

sought to display its cross under a facially neutral policy,

Justice O’Connor observed that “certain aspects of the

cross display in this case arguably intimate government

approval of respondents’ private religious message — par-

ticularly that the cross is an especially potent sectarian

symbol which stood unattended in close proximity to

official government buildings.” Id. at 776 (O’Connor, J.,

concurring). See also Pinette, 515 U.S. at 785 (“one would

not be a dimwit as a matter of law to think that an

unattended religious display there was endorsed by the

government”) (Souter, J., concurring).

The question, then, is whether this case presents

circumstances in which a non-discriminatory access pol-

icy would undermine Establishment Clause values. The

amici submit that it does not.

A. The Reasonable Observer Would Not Perceive

School District Endorsement of the Club.

Milford’s forum has long been open to those wishing

to express religious viewpoints on “secular” subjects, and

there is no evidence. that such speakers (if any) have

dominated the forum. There is no reason to believe that

those engaging in worship or religious instruction would

dominate the forum if granted equal access. If given

access, the Good News Club would simply join the Boy

Scouts, Girl Scouts, 4-H, and others meeting in Milford

Central School after hours. The Club’s religious expres-

sion would not be out in the open, as was the religious

message in Pinette, Lynch v. Donnelly, 465 U.S. 668 (1984),

and County of Allegheny v. ACLU, 492 U.S. 573 (1989), thus

minimizing the possibility that the reasonable observer

would attribute their speech to the School District.

Indeed, the expression here is not an unattended display,

the sponsor of which is not always self-evident, but

rather actual speech coming from the mouths of readily

identifiable speakers. Moreover, an empty classroom after

regular school hours is not the kind of prominent place

that might raise suspicions about the government's stance

towards the speech there. See County of Allegheny, 492 U.S.

at 599-600.

The hypothetical reasonable observer? would not

perceive endorsement of religion were the School District

to give the Good News Club the same access afforded

other groups. The reasonable observer would be aware of

the evenhandedness of Milford’s policy, and would know

that a variety of groups — religious and secular — had

taken advantage of the privileges available under that

policy. The reasonable observer would understand that

the Club is a private organization independent of the

School District. Relatedly, the reasonable observer would

know that school officials do not participate in Club

meetings or take steps to encourage attendance at those

meetings. The reasonable observer would know that par-

ents, not the school or even the children themselves,

decide whether a child will attend a Club meeting.

* As discussed in more detail below, the observer whose

perceptions matter for purposes of the endorsement test is the

well-informed, objective, hypothetical reasonable observer. See

Pinette, 515 U.S. at 773 (O'Connor, J., concurring); County of

Allegheny, 492 U.S. at 630 (O’Connor, J., concurring); Estate of

Thornton v. Caldor, Inc., 472 U.S. 703, 711-12 (1985) (O’Connor, J.,

concurring) (“objective observer”).

For these reasons, the reasonable observer would not

perceive government endorsement of religion if Milford

gave the Club equal access to its facility.

B. The Age of the Children Does Not Justify a

Different Analysis or Result.

Milford apparently will contend that the Establish-

ment Clause justifies discriminatory exclusion of the Club

from the forum given that elementary-age children attend

Club meetings and attend Milford Central School, a

school that has students in grades kindergarten through

twelve. The amici anticipate that they will argue that the

children in these age ranges will infer School District

endorsement of the Club and that the Establishment

Clause requires the School District to exclude the Club in

order to prevent such misperceptions.

1. Problems associated with eschewing the

reasonable observer.

By focusing Establishment Clause analysis on spec-

ulation about what children might perceive, Milford pro-

poses a wholesale reconfiguration of the endorsement

test. Presumably it does not suggest the utter rejection of

the hypothetical, well-informed, reasonable observer

described by Justice O’Connor in her Pinette concurrence.

Instead, one can presume, it wishes to limit the circum-

stances in which that observer’s perceptions matter. In

other words, Milford suggests that the context should

determine the identity and characteristics of the observer

whose perceptions matter, even to the point of relying

upon an observer whose perceptions are objectively

unreasonable. This Court should reject its invitation to

such a radical rewriting of the endorsement test.

At the outset, Milford’s proposal raises a host of

vexing questions. In what circumstances would the per-

ceptions of the well-informed, hypothetical reasonable

observer still matter? What is the principled basis for

confining her influence to that (as yet undefined) class of

cases? How many different “observers” would appear on

the legal landscape? What varying degrees of knowledge

and understanding might they possess?

Pity the lower federal courts, which would be forced

to contront such a dizzying array of new, analytically

antecedent questions in every Establishment Clause case.

And pity government officials trying to steer a course

that will avoid lawsuits brought under either the Free

Speech Clause or the Establishment Clause. Much of the

criticism leveled at the endorsement test has asserted that

it is insufficiently concrete. See, e.g., County of Allegheny v.

ACLU, 492 U.S. 573, 668-679 (1989) (Kennedy, J., concur-

ring in judgment in part and dissenting in part). What-

ever the validity of such a critique in the past, there can

be no doubt that this accusation would ring true if the

identity of the observer whose perceptions “count”

changed from context to context.

Aside from the practical problems with the School

District's suggestion, its proposal is at odds with the

theoretical foundations of the endorsement test. At bot-

tom, the endorsement test seeks to discern the meaning of

government action in the political community as a whole,

asking whether the government has made religion rele-

vant to citizens’ standing in the political community.

Lynch, 465 U.S. at 692. In enforcing the Establishment

Clause, the Court's concern “is with the political commu-

nity writ large.” Pinette, 515 U.S. at 779 (O’Connor, J.,

concurring). By urging the Court to focus on the possible

misperceptions of children, Milford ignores this funda-

mental focus of the endorsement test.

The precise identity of the observer(s) whose percep-

tions the School District thinks should matter is not clear.

Perhaps the perceptions of actual children matter in their

view. Perhaps it is the perceptions of the “average” child.

And perhaps it is the perceptions of a hypothetical “rea-

sonable child,” a creature unknown to the law. In each

case, the test will focus not on the political community

writ large, but upon some subset of the population. This

is inconsistent with the repeated insistence that endorse-

ment analysis not be conducted this way. For example,

Justice O’Connor’s concurring opinion in Pinette states

that “the endorsement inquiry is not about the percep-

tions of particular individuals or saving isolated adher-

ents from the discomfort of viewing symbols of a faith to

which they do not subscribe.” 515 U.S. at 779 (O’Connor,

J., concurring). Justice O’Connor “disagree[d] that the

endorsement test should focus on the actual perception of

individual observers, who naturally have differing

degrees of knowledge.” Id.

Focusing on the unreasonable misperceptions of chil-

dren cannot be squared with the description of the rea-

sonable observer's attributes in Pinette. Justice O'Connor

wrote separately largely to emphasize that “the endorse-

ment test necessarily focuses upon the perception of a

10

reasonable, informed observer.” 515 U.S. at 773 (O’Con-

nor, J., concurring). She disagreed with Justice Stevens

about the quantum of knowledge attributed to the test's

reasonable observer, declaring that the observer should

be deemed “more informed than the casual passerby

postulated by Justice Stevens.” Id. at 779.

In her view, “the endorsement test creates a more

collective standard to gauge ‘the “objective” meaning of

the [government's] statement in the community.’ ” Id.

In this respect, the applicable observer is similar

to the ‘reasonable person’ in tort law, who ‘is

not to be identified with any ordinary individ-

ual, who might occasionally do unreasonable

things,’ but is ‘rather a personification of a com-

munity ideal of reasonable behavior, determined

bv the [collective] social judgment.’

Id. at 779-80 (quoting W. Keeton, D. Dobbs, R. Keeton, &

D. Owen, Prosser and Keeton on Law of Torts 175 (5th ed.

1984)).

To replace the reasonable observer, who “is pre-

sumed to possess a certain level of information that all

citizens might not share,” with a child is to turn the

endorsement test on its head. The reasonable observer is

the polar opposite of most children, whose need to be

conformed to community ideals of reasonable behavior is

a primary rationale for education and parenting. Instead

of looking to a “community ideal” to determine the

meaning of the government's action in the political com-

munity, the School District would have this Court look to

the opposite end of the spectrum to determine the consti-

tutionality of private religious speech in public places.

11

The Establishment Clause does not categorically for-

bid the government from taking any action that might

cause someone to believe that it is endorsing religion. Put

differently, Americans do not possess an absolute, inviol-

able “right” to be free from any perception — however

inaccurate or unreasonable - that the government is

endorsing religion. Were it otherwise, scores of previ-

ously permissible actions would become impermissible.

Justice O’Connor’s concurring opinion in Wallace v.

Jaffree, 472 U.S. 38 (1985), is instructive. In agreeing that

Alabama’s moment of silence law violated the Establish-

ment Clause, she wrote separately to explain why

moment of silence laws in other states would pass consti-

tutional muster. Justice O’Connor observed that the typi-

cal statute “calls for a moment of silence at the beginning

of the schoolday during which students may meditate,

pray, or reflect on the activities of the day.” 472 U.S. at 71.

She distinguished such statutes from the practices invali-

dated in Engel v. Vitale and Abington School District v.

Schempp, 374 U.S. 203 (1963). A moment of silence, unlike

prayer or devctional Bible reading, is not inherently reli-

gious. Id. at 72. Moreover, a student could participate in

the moment of silence without compromising his or her

religious beliefs. Id.

Justice O’Connor did not consider whether a young

child might infer government endorsement of prayer

from the government’s moment of silence requirement.

Such an inference is not implausible; nonetheless, it did

not affect the analysis. Justice O’Connor explained that

“It]he relevant issue is whether an objective observer,

acquainted with the text, legislative history, and imple-

mentation of the statute, would perceive it as a state

12

endorsement of prayer in public schools.” 472 U.S. at 76.

A moment of silence law “that is clearly drafted and

implemented so as to permit prayer, meditation, and

reflection within the prescribed period, without endors-

ing one alternative over the others, should pass the test.”

Id.

The result in this case is a fortiori. The permissible

moment of silence laws identified by Justice O’Connor in

her Wallace concurrence permitted children to engage in

prayer during compulsory class time. One cannot doubt

that non-praying children would almost certainly know

that certain of their classmates were praying, and that the

school had afforded them the opportunity so to do.

Indeed, it is quite possible that both praying and non-

praying children would infer school endorsement of

prayer from the moment of silence. Yet this was not

material to Justice O'Connor, who continued to hold the

view that only the perceptions of the knowledgeable,

objective observer are relevant to endorsement analysis.

472 US. at 76, 78.

2. Examining children’s unreasonable misper-

ceptions is unsupported in law.

Milford may try to use this Court's dicta, in certain

Establishment Clause cases, about the relative impres-

sionability or immaturity of young children to support its

position. See, e.g., Edwards v. Aguillard, 482 U.S. 578, 584

(1987); Grand Rapids Sch. Dist. v. Ball, 473 U.S. 373, 383,

385, 390 (1985); Tilton v. Richardson, 403 U.S. 672, 686

(1971). These statements do not support examining and

13

deeming material the unreasonable misperceptions of

some children.

It is common ground that the Establishment Clause

forbids government from engaging in religious indoc-

trination, from coercing citizens to participate in religious

exercises, and from directly and tangibly supporting

indoctrination undertaken by others. See, e.g., Santa Fe

Independent Sch. Dist. v. Doe, 120 S. Ct. 2266 (2000); Mit-

chell v. Helms, 120 S. Ct. 2530 (2000); Engel v. Vitale, 370

U.S. 421 (1962). To the extent that it is germane at all, the

impressionability of young children is relevant to the

application of these principles rather than to the identity

of the observer whose perception of the relationship

between church and state matters under the endorsement

test. In other words, the alleged susceptibility of younger

children to “indoctrination” does not mean that the Court

should abandon the reasonable observer when younger

children are in the picture.

The Court's cases suggest that whether government's

own or government-sponsored religious speech will tend

to “indoctrinate” may depend in part upon the nature of

the audience to that speech. For example, a legislative

chaplain’s prayer is unlikely to “indoctrinate” individual

legislators. Marsh v. Chambers, 463 U.S. 783 (1983). Also,

adult legislators are far less likely to be coerced into

joining the chaplain’s prayers than are those attending

public school football games or graduation exercises.

Compare Marsh with Santa Fe, 120 S. Ct. 2266, and Lee v.

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

This Court has expressed concern about the suscep-

tibility of young children to indoctrination only when the

14

government itself engages in religious expression or

directly and tangibly supports religious indoctrination.

See, e.g., Tilton, 403 U.S. 672; Edwards, 482 U.S. 578. For

example, this Court has stated that government aid to a

religious college is less likely to support indoctrination

than aid to a religious elementary school, in part because

college students are simply less susceptible to efforts at

indoctrination than are young children. Tilton, 403 U.S. at

686.

As a consequence, the Tilton Court deemed aid to

religious universities less problematic than aid to second-

ary and elementary parochial schools (a program of

which was invalidated the same day in Lemon v. Kurtz-

man, 403 U.S. 602 (1971)). In addition to observing that

religious universities are far less likely to engage in what

one might call “indoctrination,” the Court noted that

“college students are less impressionable and less suscep-

tible to religious indoctrination” and that “(t]he skepti-

cism of the college student is not an inconsiderable

barrier to any attempt or tendency to subvert the congres-

sional objectives and limitations.” Id. at 686.

In short, the age of children has been relevant to this

Court in the sense that younger children are more suscep-

tible to indoctrination and pressure to participate in reli-

gious exercises like prayer than are older children and

adults. This impressionability is simply a different issue

than the possibility that young children will erroneously

infer government endorsement of religion from govern-

mental equal treatment of religion. Because the Milford

School District is not engaging in religious expression,

coercing others to participate in religious exercise, or

15

directly and tangibly supporting religious indoctrina-

tion,* the age of the children involved in this case is not

relevant.

In only one case has the Court relied upon the

alleged inability of young children accurately to discern

the relationship between the state and religion in striking

down government conduct under the Establishment

Clause. In Grand Rapids School District v. Ball, 473 U.S. 373

(1985), in which the Court struck down public aid to

religious schools, Justice Brennan stated that interaction

between church and state “is most likely to influence

children of tender years, whose experience is limited and

whose beliefs consequently are the function of environ-

ment as much as of free and voluntary choice.” 473 U.S.

at 390. The Court held that Grand Rapids’ support of

parochial schools was unconstitutional in part because

such support provided a “crucial symbolic link between

government and religion, thereby enlisting — at least in

the eyes of impressionable youngsters — the powers of

government to the support of the religious denomination

operating the school.” Id. at 385. In other words, even

though the aid programs neutrally supported both secu-

lar and religious nonpublic schools, the Establishment

Clause forbade Grand Rapids from engendering this per-

ception. |

Of course, the “symbolic union” component of the

Ball Court's reasoning was expressly repudiated by this

Court in Agostini v. Felton, 521 U.S. 507 (1997). The

4 It is too late in the day to argue that granting equal access

to meeting space, without more, implicates the Establishment

Clause’s “no aid” principle.

16

Agostini Court observed that its more recent cases had

“undermined the assumptions upon which Ball and Agui-

lar [v. Felton, 473 U.S. 402 (1985)] relied.” 521 U.S. at 222.

One of these was the assumption that “[t]he presence of

public teachers on parochial school grounds ... created a

‘graphic symbol of the “concert or union or dependence”

of church and state,’ especially when perceived by ‘chil-

dren in their formative years.’” Id. at 220. The Court

declared that its 1993 decision in Zobrest v. Catalina Foot-

hills School District, 509 U.S. 1 (1993), had repudiated the

assumption underlying Ball and Aguilar that “the pres-

ence of a public employee on private school property

creates an impermissible ‘symbolic link’ between govern-

ment and religion.” 521 U.S. at 224. Nowhere does the

Court’s opinion suggest that the cognitive abilities of

elementary school children changed dramatically

between 1985 and 1997; instead, the Agostini Court sim-

ply understood that a child’s misperception of neutrality

as endorsement should not drive Establishment Clause

analysis.

Milford may argue that dicta in two other opinions

suggest that the age of children might affect endorsement

analysis. In Widmar v. Vincent, the Court concluded that

“an open forum in a public university does not confer

any imprimatur of state approval on religious sects or

practices.” 454 U.S. at 274. In a footnote supporting this

conclusion, the Court noted that “[u]niversity stu-

dents ... are less impressionable than younger students

and should be able to appreciate that the University’s

policy is one of neutrality toward religion.” Id. at 274 n.

14. In Board of Education v. Mergens, a school district

argued that its compliance with the Equal Access Act

17

would cause secondary school students to perceive offi-

cial support of religious clubs. 496 U.S. at 249. In a

portion of her opinion joined by three other Justices,

Justice O’Connor rejected this contention in part because

“secondary school students are mature enough and are

likely to understand that a school does not endorse or

support student speech that it merely permits on a non-

discriminatory basis.” Id. at 250.

The amici anticipate that the School District will

invoke these statements in arguing that the Establishment

Clause justified its action. At the outset, it is difficult to

square such an argument with this Court's disinclination

to differentiate among various levels of schools in other

Establishment Clause cases. For example, Justice O’Con-

nor stated that the “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 avail-

able to all.” Rosenberger, 515 U.S. at 846 (O’Connor, J.,

concurring) (emphasis added). Similarly, in Santa Fe, the

Court declared that “nothing in the Constitution as inter-

preted by this Court prohibits any public school student

from voluntarily praying at any time before, during, or

after the schoolday.” 120 S. Ct. at 2281 (emphasis added).

Furthermore, neither Agostini nor Mitchell v. Helms

deemed it significant that some of the schools receiving

aid were elementary schools.

In addition, the plurality opinion in Mergens itself

cites Tinker v. Des Moines Independent Community School

District, 393 U.S. 503 (1969), and West Virginia State Board

of Education v. Barnette, 319 U.S. 624 (1943), for the propo-

sition that students can understand the distinction

18

between neutrality and endorsement. Mergens, 496 U.S. at

250 (plurality op.). One of the students in Tinker attended

junior high school, and there can be little doubt that

Barnette applies to elementary school students. Finally, in

Wallace v. Jaffree, 472 U.S. 38 (1985), Justice O'Connor did

not differentiate between elementary and secondary

school students in assessing the validity of Alabama’s

moment of silence law. Indeed, she repeatedly referred to

the “objective observer” and emphasized that he or she

would be “acquainted with the Free Exercise Clause and

the values it promotes.” 472 U.S. at 76, 77, 83.

To the extent that Milford may attempt to read into

Widmar and Mergens some dicta about elementary

schools, it should be repeated that Agostini rejected Ball's

“symbolic union” rationale. In discussing (but ultimately

rejecting) the Westside Board of Education’s endorsement

claim, Justice O'Connor acknowledged that the Court had

“invalidated the use of public funds to pay for teaching

state-required subjects at parochial schools, in part

because of the risk of creating ‘a crucial symbolic link

between government and religion, thereby enlisting - at

least in the eyes of impressionable youngsters - the

powers of government to the support of the religious

denomination operating the school.’ ” Mergens, 496 U.S.

at 250 (quoting Ball, 473 U.S. at 385). Although Justice

O’Connor rejected the extension of Ball's reasoning in

part because of the relative maturity of secondary school

students, one can now safely say that the Court’s subse-

quent decision in Agostini repudiates Ball's approach

without regard to the age of the children involved. There-

fore, this Court should reject any effort by Milford to

twist Widmar or Mergens to argue that the Establishment

19

Clause justified its discrimination against the Good News

Club.

Milford also relies upow the defined scope of the

Equal Access Act in arguing that a different outcome is

warranted in the elementary school context. In its opposi-

tion to the Club’s certiorari petition, Milford argued that

the Equal Access Act’s coverage of secondary school stu-

dents meant that Congress had determined that students

below the secondary school level could not understand

government neutrality toward religion.

The Act itself refutes that argument, providing that

“[njothing in [the Act] shall be construed to authorize the

United States or any State or political subdivision there-

of .. . to abridge the constitutional rights of any person.”

20 U.S.C. § 4071(d)(7). As the Ninth Circuit concluded in

Garnett v. Renton School District No. 403, 987 F.2d 641 (9th

Cir. 1993):

Section 4071(d)(7) is a “savings” clause that pro-

tects against reading implications in the EAA

which might abridge federal constitutional

rights, either for persons and schools within its

scope, or for those outside its scope, such as

secondary school teachers and elementary school

students.

987 F.2d at 645 (emphasis added). In § 4071(d)(7), Con-

gress made clear that its protection of secondary school

students was not to be used to restrict the constitutional

rights of those not included in the coverage of the Equal

Access Act.

20

II. Granting the Club Equal Access to School Facilities

Does Not Pressure Students Into Participating in

Religious Exercises.

In its opposition to the Club's petition for a writ of

certiorari, Milford argued that if it allowed the Club to

meet after school, it would run afoul of this Court's

decisions in McCollum v. Board of Education, 333 U.S. 203

(1948), Engel v. Vitale, 370 U.S. 421 (1962), Lee v. Weisman,

505 U.S. 577 (1992), and Santa Fe Independent School Dis-

trict v. Doe, 120 S. Ct. 2266 (2000). The government's

conduct in those cases differs dramatically from the equal

treatment the Club seeks in this case. An equal access

policy would not implicate the Court’s decisions in these

cases.

In Engel, Lee, and Santa Fe, the Court concluded that

the government was pressuring students to participaie in

prayer. In Lee v. Weisman, the Court invalidated a Rhode

Island school district's practice of inviting local clergy to

pray at school graduation ceremonies. By mandating a

religious exercise at an event that students were, for all

practical purposes, obliged to attend, the school district

put those who objected to the prayers in the “untenable

position” of choosing between appearing to participate

and openly protesting. 505 U.S. at 593. The Court held

that the Establishment Clause forbid placing school chil-

dren in such a position. Id. Applying the principles set

forth in Lee, the Santa Fe Court held that a Texas school

district's pregame speech policy had “the improper effect

of coercing those present to participate in an act of reli-

gious worship.” 120 S. Ct. at 2280.

21

It cannot plausibly be argued that students are forced

- either by law or the realities of social life in the school -

to attend Good News Club meetings. Obviously, New

York’s truancy laws do not extend beyond the final bell of

the day; students are not legally required to participate in

any after-school meeting, much less the Good News Club

meetings. In addition, Club meetings are plainly not like

once-in-a-lifetime graduation ceremonies or even like

weekly varsity high school football games. In those situa-

tions, the Court said that potentially coercive prayer was

being added to events most students otherwise wanted to

attend, i.e., without regard to whether the event would

include prayer. In contrast, students attend Good News

Club meetings because their parents desire it and give

written permission. Their parents know full well that

prayer will be a significant part of the meetings. Unlike

graduation ceremonies and football games, those attend-

ing Club meetings are present because of prayer, not

despite it.

The School District may argue that some children

will feel pressure from their peers to attend Club meet-

ings. At the outset, the existence of such peer pressure, by

itself, is not constitutionally impermissible. See Board of

Educ. v. Mergens, 496 U.S. at 251 (“[t]o be sure, the possi-

bility of student peer pressure remains, but there is little

if any risk of official state endorsement or coercion where

no formal classroom activities are involved and no school

officials actively participate”). The critical fact is that

students cannot act on that pressure — and thereby partic-

ipate in inherently religious activities — unless a parent so

desires. This is quite different than the situation in Engel,

22

Lee, and Santa Fe, in which the pressure to pray was

unmediated by parental involvement.>

Milford also argued in its opposition to the Club’s

certiorari petition that allowing the Club to meet would

cause it to contravene this Court’s ruling in McCollum v.

Board of Education, 333 U.S. 203 (1948). In that case, of

course, the Court struck down an Illinois school district's

coordination of religious instruction on school property

during compulsory time. The school district did not open

its doors to outsiders other than those offering religious

instruction. The instructors were “subject to the approval

and supervision of the superintendent of schools.” 333

U.S. at 208. Students who signed up for but failed to

attend religious classes would be reported to their secular

teachers. Id. at 209. The McCollum Court held that the

“close cooperation between the school authorities and the

religious council in promoting religious education” vio-

lated the Establishment Clause. 333 U.S. at 209.

Simply granting the Good News Club equal access to

meeting space after school is obviously quite different

> Milford or its amici may argue that religious groups like

the Good News Clubs will not provide parents enough

information about their activities to enable parents to make

informed choices about their children’s attendance. Amicus

Child Evangelism Fellowship, Inc., which sponsors Good News

Clubs around the country, provides its local volunteers with

parental permission slips and brochures that plainly set forth

the nature of its activities. In any event, such speculation about

the willingness of religious groups to disclose their intentions

and about the diligence of parents in learning about the

meetings their children will attend does not justify a ban on

religious group meetings in elementary schools.

23

than the close cooperation struck down in McCollum. See

Widmar, 454 U.S at 272 n. 10 (distinguishing McCollum).

Although Club meetings, like the religious instruction in

McCollum, would occur on school grounds, those meet-

ings wouid not occur during compulsory class time.

Therefore, an equal access policy would not “afford{ |

sectarian groups an invaluable aid” by providing “pupils

for their religious classes through use of the state’s com-

pulsory public school machinery.” 333 U.S. at 212. To be

sure, one might plausibly contend that the Club would

“take advantage” of the state’s compulsory education

laws by holding meetings immediately after school. How-

ever, the Court’s subsequent decision in Zorach v. Clauson,

343 U.S. 306 (1952), forecloses any suggestion that this

violates the Establishment Clause. Indeed, Zorach

declared that “[w]Jhen the state encourages religious

instruction or cooperates with religious authorities by

adjusting the schedule of public events to sectarian

needs,” it does not violate the First Amendment. Id. at

313-14. In this case, the Club is not asking Milford to

adjust the schedule of classroom instruction to suit its

needs; it is simply asking that Milford give it the same

after-hours access to meeting space available to other

community groups. |

By permitting the Good News Club to meet imme-

diately after school, the School District would be simply

facilitating and making more convenient parents’ wishes

about the moral development of their children. The

Establishment Clause does not require a school district to

go out of its way to make it more difficult for parents to

pursue their wishes in this regard by categorically

24

banning such meetings or forbidding them from occur-

ring immediately after school.

+

CONCLUSION

The amici respectfully request that this Court reverse

the judgment of the Court of Appeals and remand the

case for entry of judgment in favor of the Petitioners.

Respectfully submitted,

Grecory S. Baytor Hersert G. Grey

Counsel of Record 14355 S.W. Allen Blvd.

KimBERLEE Woop Co sy Suite 100

Rewicious Lisperty Beaverton, OR 97005

ADVOCATES (503) 641-4908

4208 Evergreen Lane,

Darren C. WALKER

P.O. Box 969

Vancouver, WA 98666

(360) 699-1400

Suite 222

Annandale, VA 22003

(703) 642-1070

App. 1

APPENDIX

STATEMENT OF INTEREST

Child Evangelism Fellowship, Inc., (CEF) is a Bible-

centered, worldwide organization composed of born-

again believers whose purpose is to evangelize boys and

girls with the Gospel of the Lord Jesus Christ and to

establish (disciple) them in the local church for Christian

living. In the United States and Canada, 700 full-time

workers and an estimated 40,000 volunteers serve the

ministry. CEF was founded by Jesse Irvin Overholtzer in

1937.

As of August 2000, 4,622 Good News Clubs were

operating in the United States. Of these, 527 (about 11%)

were meeting on public school property after regular

school hours. The Court’s decision in this case obviously

will have a significant impact on CEF’s ability to pursue

its mission.

Mae Culbertson, Ladette Armstrong, Marsha Hall,

and Mary Tommila are among the plaintiffs in Culbertson

v. Oakridge School District, (In the United States Court of

Appeals for the Ninth Circuit, No. 99-36165), a dispute

similar to the case at bar.

In October 1995, the Oakridge (Oregon) School Dis-

trict denied a Good News Club continued access to

school facilities despite a district policy “encourag[ing]

the use of school buildings for community use, for educa-

tional and recreational purposes.” Oakridge believed that

granting the Good News Club access under this policy

would violate the Establishment Clause. As a conse-

quence of Oakridge’s action, the Good News Club was

forced to locate another loce‘ion for its meetings, away

App. 2

from the school campus. After Oakridge excluded the

Club from school facilities, membership in the Club

dropped dramatically. A number of parents expressed

concerns about the safety of transporting children to an

off-campus location.

The United States District Court for the District of

Oregon ruled that Oakridge had violated the plaintiffs’

rights under the Free Speech Clause and that the Estab-

lishment Clause neither required nor justified that viola-

tion. Oakridge appealed the district court’s judgment to

the United States Court of Appeals for the Ninth Circuit.

The Court of Appeals heard oral argument on March 6,

2000. In an order dated October 31, 2000, the Ninth Cir-

cuit panel withdrew submission of the case and deferred

resolution pending this Court’s issuance of an opinion in

the instant case.

At all times relevant to the litigation, amicus Mae

Culbertson was the volunteer instructor of the Good

News Club meeting in Oakridge, Oregon. Amici Ladette

Armstrong, Marsha Hall, and Mary Tommila are parents

of children who attended Good News Club meetings in

Oakridge.

The Family Research Council, Inc., (FRC) is a non-

profit, research and educational organization dedicated to

articulating and advancing a family-centered philosophy

of public life. In addition to providing policy research

and analysis for the legislative, executive, and judicial

branches of the federal government, FRC seeks to inform

the news media, the academic community, business

leaders, and the general public about family and religious

liberty issues that affect the nation. FRC is committed to

App. 3

ensuring that the legacy of family, faith and freedom is

not forgotten in America. FRC has participated in

numerous amicus curiae briefs in the United States

Supreme Court, lower federal courts, and state courts.

Kenneth L. Connor is the President and Janet M. LaRue is

the Senior Director of Legal Studies.

The mission of the Fellowship of Christian Athletes

(FCA) is to present to athletes and coaches, and all whom

they influence, the challenge and adventure of receiving

Jesus Christ as Savior and Lord, serving Him in their

relationships and in the fellowship of the church. Cur-

rently, FCA sponsors over 7,700 “huddles” involving an

estimated 500,000 students at approximately 24% of the

Nation's public schools. Many FCA huddles utilize public

school facilities for after hours activities.

Campus Crusade for Christ is an interdenomina-

tional, religious organization whose purpose is to intro-

duce people of all ages to the Gospel of Jesus Christ, to

help Christian believers to grow in the faith, both

through training and through building relationships with

other believers, and to help Christian believers to be

effective in communicating their faith with others.

Among its missionary activities in the United States,

Campus Crusade for Christ operates at least five minis-

tries with a direct interest in this case. First, Children of

the World is a ministry of Campus Crusade for Christ

which has its focus in developing programs designed for

elementary school aged children, and training for their

parents, and other significant adults in their lives, to help

them develop and grow in their Christian faith. In many

cases, after-school clubs similar to the one which is the

App. 4

subject of the within litigation, though not directly affili-

ated with Campus Crusade for Christ, use its training

and materials. Campus Crusade for Christ, through its

ministry division, Student Venture, operates after-school

clubs for junior high school and high school students, and

through its Campus Ministry division, sponsors clubs on

college and university campuses. Campus Crusade for

Christ, also distributes The Story of Jesus for Children, a

theatrical film depicting the life of Jesus, based upon the

Gospel of Luke, and told from a child’s perspective.

Campus Crusade for Christ offers other opportunities for

training for young people through its Josh McDowell

Ministries division.