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

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No. 99-2036

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In The

Supreme Court of the United- States

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IHE GOOD NEWS CLUB, et al.,

MILFORD CENTRAL SCHOOL,

Respondent

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On Writ Of Certiorari

To The United States Court Appeals

For The Second Circuit

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BRIEF OF THE NEW YORK STATE SCHOOI

BOARDS ASSOCIATION, INC. AS AMICUS CURIAI

IN SUPPORT OF RESPONDENT

BOARDS ASSOCIATION, IN«

119 Washington Avenue

Albany, New York 12210-2292

(518) 465-3474

. _

Counsel for Am US CHa

BEST AVAILABLE COPY

TABLE OF CONTENTS

Page

ES GE SEs H.n0h ochesecdcedeesundnes ii

INTERES! OF THE AMICUS ..... 2. ccccccccccccees 1

SUMMARY OF THE ARGUMENT ................. 1

ET cicn0 ad bsonbedhsced ovnsensssenseeeese 4

I. The Milford Central School Did Not Violate

The Free Speech Rights Of The Good News

Club When It Denied The Club Access To The

Use Of Its Public School Facilities........... 4

Il. Establishment Clause Concerns Justified Mil-

ford’s Decision To Deny The Club’s Request

To Meet On School Premises................ )

III. Milford Did Not Become Excessively Entan-

gled With Religion In Violation Of The Estab-

lishment Clause When It Asked The Club For

A Description Of Its Intended Use Of School

Facilities And For Supplemental Information

Elaborating On Those Intentions ............ 14

EN, 66 66.0:064.04045600065-6000605s00 0800008 18

TABLE OF AUTHORITIES

Page

Cases

Abington School Dist. v. Schempp, 374 U.S. 203

t Piro UU 10

Agostini v. Felton, 521 U.S. 203 (1997) ........ 11, 14, 15

Board of Educ. of the Westside Community Schools v.

Mergens, 492 U.S. 226 (1990) ..........cceeeeeees 7, 11

Bowen v. Kendrick, 487 U.S. 589 (1988)........ 14, 15, 16

Campbell v. St. Tammany’s School Board, 206 F.3d

482 (Sth Cir. 2000), rehearing en banc denied, 231

OR Aw at 2 ee! 5

Capitol Square Review and Advisory Bd. v. Pinette,

SIS US. 75S (RGGG) «00 cvccvescccesenssesaueenneee 10

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

MTTTTTITTTTt 3, 6, 11, 12

Cornelius v. NAACP Legal Defense and Educational

Fund, inc., 473 US. 768 (T9GS) ...csccccccccess 2, 4, 6

Deeper Life Christian Fellowship, Inc. v. Board of

Education of the City of New York, 852 F.2d 676

vr fe S| Pee 7, 8

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

re Oe 3, 10, 13

Engie v. Vitale, 370 US. 421 (1062) ....sccccccesesess 10

Good News Club v. Milford Central School, 203 F.3d

ee ee ee 2, 4, 5

Lamb's Chapel v. Center Moriches Union Free School

Dist., S68 US. FBG (IGG) . cc ccccsccccsesncenes passim

Lee v. Weisman, 505 U.S. 577 (1992)............ 3, 10, 13

TABLE OF AUTHORITIES - Continued

Page

Lemon v. Kurtzman, 403 U.S. 602 (1971).............. 11

Lynch v. Donnelly, 465 U.S. 668 (1984)..........:.. 3, 11

McCollum v. Board of Educ. of School Dist. No. 17,

BED PG, BD CIDER ccc ccc cccsccccccccccese 10, 12, 13

Rosenberger v. Rector and Visitors of the University of

Virginia, 515 U.S. 819 (1995) ..... 6... e eens 6,7, 9

Stone v. Graham, 449 U.S. 39 (1980).............5065- 10

Widmar v. Vincent, 454 U.S. 263 (1981).......... 6, 7, 11

Zorach v. Clauson, 343 U.S. 306 (1952) ............ 12, 13

STATUTES

20 U.S.C. G6 4701 ef 80g. 2.0... ccc cece ccc cece neeeees 6

BO UGS.C. © GFOMEMT) 0. 2c ccccccccccccccccccccccceess 7

BO UGG. © GIOUEMA) 02 cc cccscccccscvccccccccceccess 7

BD UG. © GIGUEME) 2 nore cccccccccccccccccceccees 7

BO UG.C. © GFOUENMS) «0. ccc cccccccccsccccccccceccees 7

N.Y. Educ. L. § 414(1)(a)... 0.66.6 cece cece eens 8

INTEREST OF THE AMICUS

Letters from the parties consenting to the filing of

this brief have been filed with the Clerk of the Court. The

interest of the amicus curiae! is as follows.

The New York State School Boards Association

(“NYSSBA”) is a not-for-profit membership corporation

incorporated under the laws of the State of New York

located in Albany, New York. NYSSBA’s membership

consists of approximately 697 or 94 percent of the public

school districts in New York State, including the Respon-

dent herein. NYSSBA has often appeared as an amicus

curiae in federal and state court cases affecting educa-

tional policy, with a particular interest in those involving

separation of church and state issues. Notably, the amicus

curiae has filed briefs before this Court in Lamb's Chapel v.

Center Moriches Union Free School District, 508 U.S. 384

(1993) and Mitchell v. Helms, 121 S.Ct. 2530 (2000). The

Association’s General Counsel, Jay Worona, has pre-

sented oral argument before this Court in his capacity of

Counsel of Record for the Respondents in Board of Educ. of

the Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687

(1994).

SUMMARY OF THE ARGUMENT

This Court has long held that where government

property is not a traditional or designated public forum,

! This brief was written entirely by counsel for the amicus

and not in any part by counsel for either party. No person or

entity other than the amicus has made a monetary contribution

to the preparation or submission of this brief.

government may restrict public access thereto “based on

subject matter . . . so long as the distinctions drawn are

reasonable in light of the purpose served by the forum

and are viewpoint neutral.” (Cornelius v. NAACP Legal

Defense and Educational Fund, Inc., 473 U.S. 788, 806 (1985),

Lamb's Chapel v. Center Moriches Union Free School Dist.,

508 U.S. 384, 392-93 (1993)). There is no dispute that the

Milford Central School (“Milford” or “the District”) has

established a limited public forum regarding community

use of its school facilities. (Good News Club v. Milford

Central School, 203 F.3d 502, 509 (2nd Cir. 2000); Peti-

tioners’ Brief at p. 16). Instead, the present case concerns

the constitutional validity of Milford’s determination to

deny the Good News Club and others associated with it

(collectively “the Club”), an application for the use of

school premises to conduct activities that include the

teaching of Bible verses to young elementary school chil-

dren, the memorization of passages from Scripture by

those children, and their participation in prayer at the

start and close of the Club’s meetings. (Lodging at W1;

Joint Appendix at F3-F5; Petitioners’ Brief at pp. 7-9).

More specifically, this Court is asked to determine

whether the exclusion of such activities constitutes view-

point discrimination under equal access rights guaran-

teed by the Free Speech Clause of the First Amendment

to the United States Constitution.

Despite the Club’s assertions to the contrary, Mil-

ford’s refusal to grant the Club access to the use of its

school facilities was not an act of viewpoint discrimina-

tion. The Club’s activities at issue herein do not fall

within the perimeters of Milford’s limited public forum.

Neither do they constitute a viewpoint on matters other-

wise within that forum. In addition, it is particularly

reasonable to exclude from a limited public forum estab-

lished by a public school district proselytizing activities

of the type at issue herein that are conducted by a private

group with very young impressionable public school stu-

dents ages 6-12 as the intended target audience. Milford’s

actions were not motivated by hostility toward religion.

As acknowledged by this Court, there is a “myriad

[of] subtle ways in which the Establishment Clause can be

eroded,” (Doe v. Santa Fe Independent School Dist., 120 S.Ct.

2266, 2281 (2000) and County of Allegheny v. ACLU, 492

U.S. 573, 591 (1989) both citing Lynch v. Donnelly, 465 U.S.

668, 694 (1984) (O’Connor, J., concurring), and “the law

reaches past formalism” (Lee v. Weisman, 505 U.S. 577, 595

(1992)). Accordingly, Milford’s decision to deny the Club

access to its facilities for the purpose of conducting the

activities at issue herein was properly justified by Estab-

lishment Clause concerns regarding the impression upon

the minds of young elementary school children, as young

as age six, that a public school is also a place of worship

and religious evangelization.

Finally, contrary to the arguments advanced by the

Club and its amici, there is no excessive entanglement

caused by a school district’s actions in determining

whether a particular set of activities constitutes a reli-

gious viewpoint or evangelizing speech. Followed to its

logical extension, the Club’s argument would of necessity

require that government confer upon religion a preferred

status not otherwise countenanced by this Court’s Estab-

lishment Clause jurisprudence.

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ARGUMENT

I. The Milford Central School District Did Not Violate

The Free Speech Rights Of The Good News Club

When It Denied The Club Access To The Use Of

Public School Facilities.

It is undisputed that Milford has established a lim-

ited public forum (Good News Club, 202 F.3d at 509; Peti-

tioners’ Brief at p. 16). This Court has acknowledged

repeatedly that where government property is not a tradi-

tional public forum “devoted to assembly and debate”

either “by long tradition or by government fiat” or a

designated public forum opened intentionally “for indis-

criminate public use for communicative purposes” (Cor-

nelius, 473 U.S. at 802; Lamb's Chapel, 508 U.S. at 392-93),

government may restrict public access thereto “based on

subject matter and speaker identity so long as the distinc-

tions drawn are reasonable in light of the purpose served

by the forum and are viewpoint neutral.” (Lamb's Chapel,

508 U.S. at 392-93; see, Cornelius, 473 U.S. at 806). Mil-

ford’s forum allows private groups the use of its school

facilities for “instruction in any branch of education,

learning or the arts” and “the welfare of the community”.

(Petitioners’ Brief at p. 16). According to the Club, the

activities for which it sought to use Milford’s facilities

involve instruction on moral values from a religious

viewpoint. (Petitioners’ Brief at p. 17). Therefore, the

Club alleges that Milford’s denial of its application con-

stituted viewpoint discrimination in violation of the

Club’s rights of equal access under the Free Speech

5

Clause of the Federal Constitution. (Petitioners’ Brief at

pp. 17-22).

To establish an equal access violation in the present

case, the Club must show that its activities indeed consti-

tute instruction or a viewpoint on matters otherwise per-

missible within Milford’s forum. (Lamb’s Chapel, 508 U.S.

at 392-94). However, the teaching of Bible lessons, mem-

orization of Scripture, a challenge and invitation to

“establish[ ] a relationship with Christ” (Petitioners’ Brief

at p. 8), and the recitation of prayer at the start and close

of the Club’s meetings, (Joint Appendix at F4; Petitioners’

Brief at p. 8), constitute proseiytization and religious

worship rather than mere instruction or a viewpoint. (See

Good News Club, 202 F.3d at 510-11). The amicus respect-

fully submits that, under any standard, proselytization

evokes exhortation to adopt or maintain adherence to a

particular belief or system of beliefs. Instruction entails a

factual, objective presentation about a specific topic. A

viewpoint involves a perspective. The terms only become

blurred “by the active imagination of hypothesized appli-

cation.” (Campbell v. St. Tammany’s School Board, 206 F.3d

482, 485 (5th Cir. 2000), rehearing en banc denied, 231 F.3d

937 (Sin Cir. 2000)). It is a tortured interpretation of

language to characterize prayer as a religious viewpoint

on the subject of moral values. If one concludes that, by

definition, prayer is nothing more than a religious view-

point, then the exclusion of prayer as a viewpoint on any

topic otherwise permitted within a limited public forum

automatically would result in unlawful viewpoint dis-

crimination. The same would be true regarding the exclu-

sion of activities involving the memorization of Scripture

and the inculcation of religious beliefs through the study

of Bible passages alleged to be a viewpoint on any topic

within the forum.

Nonetheless, the Club and its amici argue that Mil-

ford’s decision to exclude the Club from its forum consti-

tutes a violation of the Club’s equal access rights because

this Court’s prior decisions in Rosenberger v. Rector and

Visitors of the University of Virginia, 515 U.S. 819 (1995)

and Widmar v. Vincent, 454 U.S. 263 (1981), elevate speech

“with an evangelistic component” out of “second-class

status” and accord it the same protection as other forms

of private speech. (Petitioners’ Brief at pp. 20-21). How-

ever, “[p]rotected speech is not equally permissible in all

places at all times. Nothing in the Constitution requires

the Government freely to grant access to all who wish to

exercise their rights to free speech .. . ” (Cornelius, 473

U.S. at 799). Therefore, the Widmar and Rosenberger deci-

sions, which arise out of the university campus instead of

an elementary or secondary school environment, are not

dispositive of this case. The issue still remains whether

Milford’s limited public forum forecloses access for the

type of proselytizing activities at issue herein. For the

reasons set forth throughout this brief, it does.

In this context, it is also important to assess the

reasonableness of excluding proselytizing activities con-

ducted by private groups on public school premises tar-

geted at elementary school children in relation to the

special characteristics and sensibilities which this Court

has acknowledged to exist within a public school envi-

ronment. (County of Allegheny, 492 U.S. at 620 fn. 69). It

was mindful of these special attributes that when Con-

gress passed the Equal Access Act, 20 U.S.C. §§ 4701 et

mee

-

seq., it allowed student Bible clubs to meet on public

school premises only at the high school level. Further-

more, most relevant to the issues before this Court, Con-

gress also required as a condition for the exercise of equal

access rights under the Act that such clubs be student-

initiated and student-led, and not be “directed, con-

trolled, conducted or regularly attended by non-school

persons.” (20 U.S.C. § 4701(c)(1),(2),(4) and (5); Board of

Educ. of the Westside Community Schools v. Mergens, 496

U.S. 226, 236 (1990)).

As such, it is similarly reasonable for a public school

district, exercising its legislative authority to establish a

limited public forum, to exclude from the forum activities

that are targeted at elementary or secondary school age

children and that are organized, directed, controlled, con-

ducted and regularly attended by non-school persons for

the purpose of evangelizing those children. A ruling in

favor of the Club reaches beyond the limits established

by Congress and recognized by this Court in Mergens. It

is equally noteworthy that the activities at issue in both

the Widmar and Rosenberger cases, relied upon by the

Club and its amici, involved student-organized activities

at the university level. They did not involve outside

private groups, or impressionable students, as young as

age six, as the target of outside private groups.

Finally, Milford adopted its “Community Use of

School Facilities” policy on August 26, 1992 (Joint Appen-

dix at F2), subsequent to a decision by the U.S. Court of

Appeals for the Second Circuit in a case entitled Deeper

Life Christian Fellowship, Inc. v. Board of Education of the

City of New York, 852 F.2d 676 (2nd Cir. 1988). In that case,

a fundamentalist Christian-church applied for permission

to use school facilities for religious worship and instruc-

tion, arguing among other things, that its proposed use of

school facilities fell within the language of New York

Education Law § 414(1)(a) which, like Milford’s policy,

authorizes the use of public school facilities by outside

groups “for the purpose of instruction in any branch of

education in learning or the arts.” The Second Circuit

determined that: “[T]he thrust of the statute is to promote

knowledge, rather than to provide a forum for proselytiz-

ing or indoctrinating the public in a particular group’s

beliefs.” (€5. F.2d at 680).

Therefore, at the point in time when Milford adopted

its policy, it was not at liberty to interpret Education Law

§ 414(1)(a) differently than the Second Circuit had inter-

preted it, and it could not have intended the provision in

its policy which mirrored the language of § 414(1)(a) to

authorize anyone to use its facilities to engage in reli-

gious instruction. As such, Milford framed the bound-

aries of its limited public forum in conformity with the

law of the Second Circuit and its actions cannot be said to

have been motivated by any hostility toward religion.

Some might argue, of course, that this Court’s Lamb's

Chapel decision supersedes the Second Circuit's statutory

interpretation of Education Law § 414(1)(a) in Deeper Life,

but to do so one must conclude that there is no distinc-

tion between religious instruction and worship and a

religious viewpoint. However, the amicus submits that

this Court’s ruling in Lamb’s Chapel does not lead inexora-

bly to that conclusion. Rather, whether it is constitu-

tionally permissible for the host of a limited public forum

to frame the boundaries of the forum in a way that draws

a distinction between religious instruction and worship

as a subject matter and a religious viewpoint on a subject

matter to which the forum already has been opened, is

precisely the question presented by this case. This Court

has not expressly addressed the issue of whether reli-

gious worship and proselytizing activities are mere view-

points, but it does appear to have acknowledged a

distinction between religion as a subject matter and reli-

gion as a viewpoint. (See Lamb’s Chapel, 508 U.S. at 390-94

and Rosenberger, 515 U.S. at 828-29).

In this context, contrary to the argument advanced by

the Club and its amici, it is not unworkable to make such

a distinction. Moreover, to adopt a rule that would fore-

close the host of a limited public forum from regulating

speech and activities regardless of the nature and extent

of the activity, once a speaker alleges it is presenting a

“religious viewpoint” on a subject matter already within

the forum, would elevate religion to a preferred status

which this Court’s Establishment Clause jurisprudence

would not countenance.

II. Establishment Clause Concerns Justified Milford’s

Decision To Deny The Club’s Request To Meet On

School Premises.

As set forth more fully above, Milford did not engage

in any act of viewpoint discrimination when it excluded

the Club from accessing school premises for its requested

usage. However, even assuming arguendo that such exclu-

sion was viewpoint discriminatory, the amicus respect-

fully submits that such exclusion was justified by the

compelling state interest of avoiding a violation of the

10

Establishment Clause. (See, e.g., Capitol Square Review and

Advisory Bd. v. Pinette, 515 U.S. 753, 761-62 (1995); Lamb’s

Chapel, 508 U.S. at 394-95; Widmar, 454 U.S. at 271).

The amicus recognizes that this Court’s previous deci-

sions finding Establishment Clause violations to exist

occurred in the context of school sponsored activities

whether they be during or after the school day, (see, e.g.,

McCollum v. Board of Educ. of School Dist. No. 17, 333 US.

203 (1948); Engle v. Vitale, 370 U.S. 421 (1962); Abington

School Dist. v. Schempp, 374 U.S. 203 (1963); Stone v.

Graham, 449 U.S. 39 (1980); Lee v. Weisman, 505 U.S. 577,

supra; Doe v. Santa Fe Independent School Dist., 120 S.Ct.

2266, supra), and not in the context of private speech

occurring on school premises. Nevertheless, the amicus

respectfully submits that this Court, in its previous deci-

sions, did not necessarily set up a litmus test precluding

school districts from demonstrating the existence of an

Establishment Clause violation simply because the

requested usage of school premises was by an outside

group.

In the present case, there is no dispute in the Record

that the Club applied for access to meet with young

elementary age students immediately after the school

day. (Joint Appendix at P29). In fact, it is quite conceiv-

able that while the Club’s activities would be getting

underway, numerous children not otherwise associated

with the Club, who might be passing by in the hallway

outside of the room in which the Club would meet,

would hear the Club’s messages as presented by adults.

Such impressionable young students could certainly gain

the impression that the Club’s religious messages of

indoctrination is being presented by Milford officials.

11.

Indeed, before and after school programs are becoming

more and more commonplace in school districts through-

out the nation, and it is not uncommon for children to

remain upon the premises of their school buildings well

after the close of the school day.

Previously, in Board of Educ. of the Westside Community

Schools v. Mergens, 496 U.S. 226, supra, this Court upheld

the constitutionality of the Equal Access Act which

requires public high schools to allow student religious

and political clubs to meet on the same basis as other

non-curriculum-related activities. Nevertheless, the Court

recognized that the Act was limited to secondary grade

students who were less impressionable and that such club

activities could not be directed by an outside group or

person. Indeed, college and university campuses are

quite different from elementary settings with respect to

the ability of college age students to discern differences

between private speech and speech which is govern-

mentally directed and/or sponsored. (See Widmar, 454

U.S. at 274 fn. 14).

Although the amicus recognizes that the Club’s

request in the present case does not fall under the Equal

Access Act, concerns regarding the impressionability of

young elementary age students should nevertheless be

recognized as supplying Milford the requisite compelling

state interest to avoid an Establishment Clause violation.

Indeed, whether this Court applies its often criticized

Lemon test (see Lemon v. Kurtzman, 403 U.S. 602 (1971)), an

“endorsement” test (see Agostini v. Felton, 521 U.S. 203

(1997); County of Allegheny, 492 U.S. at 592-94; Lynch v.

Donnelly, 465 U.S. 668, 692-94 (1984) (O’Connor, J., con-

curring)), or a “coercion” test, heretofore not yet adopted

12

in this context (see County of Allegheny, 492 U.S. at 660

(Kennedy, J., concurring in the judgment in part and

dissenting in part)), it is clear that school districts across

the nation, including Milford in the present case, can

clearly demonstrate the existence of a compelling state

interest to prevent young impressionable students, at a

time immediately at the conclusion of their school day

from perceiving their school to be fostering religious

indoctrination.

The Club maintains that a scenario which is just as

likely to occur, if the decision of the Court below is

affirmed, is that young impressionable children will gain

the belief that their school district is hostile towards

religion. (Petitioners’ Brief at p. 35). However, in the

present case, Milford maintained its actions in conformity

with the Establishment Clause and not in violation of it

by precluding the Club from meeting immediately after

the school day for a purpose which would clearly com-

municate to young elementary school age children that

their houses of learning are also houses of worship and

indoctrination. The amicus respectfully submits that the

suggestiorr that elementary age children would perceive

their schools as being hostile towards religion simply by

being required to secure messages of religious indoctrina-

tion in other facilities including churches and synagogues

is without merit.

indeed, this Court in McCollum, 333 U.S. 203, supra,

recognized that Establishment Clause impressionability

problems would arise if children were released to secure

religious instruction upon the premises of their own

school buildings. Indeed, although this Court in Zorach v.

13

Clauson, 343 U.S. 306 (1952), did not find it constitu-

tionally troubling for children to be released during the

school day for religious instruction, such instruction was

to be secured only off the premises of the public school

building. Although it is certainly true that both McCollum

and Zorach involved release time activities proposed to

occur during the school day, the facts of the instant case,

present equally troubling Establishment Clause problems.

As set forth above, a reversal by this Court of the

decision below will place the children involved in this

case in the position of witnessing acts of religious indoc-

trination at a time in their lives when they will not be

able to discern what is school sponsored and what is not.

Accordingly, the concern regarding impressionability of

young children and Establishment Clause violations is

most certainly in existence under the facts of this case.

Indeed, this Court as recently as this past year re-

stated that the Constitution requires “that we keep in

mind ‘the myriad subtle ways in which Establishment

Clause can be eroded.’” (Doe v. Santa Fe Independent

School Dist., 120 S.Ct. at 2281 (citations omitted)). It is

unquestionable that the Establishment Clause will cer-

tainly be eroded if this Court takes away the authority on

the part of school districts to shield impressionable chil-

dren from messages of religious indoctrination simply

because such messages are scheduled to take place after

the school day.

This Court has previously recognized that “the law

reaches past formalism.” (Lee v. Weisman, 505 U.S. at 595,

14

supra). Indeed, it would be a most “formalistic” distinc-

tion to find the existence of Establishment Clause con-

cerns to only arise in the context where schools are

directly involved in sponsoring certain activities or only

when such activities occur during the school dey not-

withstanding the actual effect upon the minds of imypres-

sionable students.

III. Milford Did Not Become Excessively Entangled

With Religion In Violation Of the Establishment

Clause When It Asked The Club For A Description

Of Its Intended Use Of School Facilities And For

Supplemental Information Elaborating On Those

Intentions.

When public school districts open their facilities to

designated uses by outside groups, they necessarily

inquire about each group’s proposed use of school facili-

ties to determine whether the use is consistent with dis-

trict policy. The Club’s argument that the act of inquiry

itself excessively entangles public schools with religion

cannot be reconciled with this Court’s prior rulings.

In Agostini v. Felton, 521 U.S. 203, this Court made

clear that:

Not all entanglements . . . have the effect of

advancing or inhibiting religion . . . Entan-

glement must be “excessive” before it runs afoul

of the Establishment Clause. (Id., at 233).

In so stating, this Court expressly referred to the case of

Bowen v. Kendrick, 487 U.S. 589 (1988), involving a chal-

lenge to the Adolescent Family Life Act (AFLA) which

authorized federal grants to both public and nonprofit

15

private organizations for services and research in the area

of premarital adolescent sexual relations and pregnancy.

According to this Court, Bowen did not involve excessive

entanglement even though AFLA requires that govern-

ment “review| ] the adolescent counseling program set

up by the religious institutions that are grantees, review

[] the materials used by such grantees, and monitor| |

the program by periodic visits.” (Agostini, 521 U.S. at 233

(citing, Bowen, 487 U.S. at 615-17), (emphasis added)).

In the instant case, the Club completed a “Use of

School Facilities Request Form” on which it described the

purpose of its proposed use of school facilities as follows:

“A Good News Club is a group of boys and girls meeting

one hour a week for a fun time of singing songs, hearing

a Bible lesson and memorizing scripture.” (Lodging at

W1 (emphasis added)). After reviewing the application,

Milford’s Superintendent denied the Club use of school

facilities, finding the Club’s “proposed use to be the

equivalent of religious worship, which is prohibited

under our District policy, rather than the expression of

religious views or values on a secular subject matter.”

(Joint Appendix at H1-H2). Thereafter, in response to

Milford’s request for further information, the Club’s

attorney indicated that:

The Club’s activities are run by Ms. Darlene

Fournier. The Club opens its session with Ms.

Fournier taking attendance. As she calls a

child’s name, if the child recites a Bible verse the

child receives a treat. After attendance, the Club

sings songs. Next Club members engage in

games that involve, inter alia, learning Bible

verses. Ms. Fournier then relates a Bible story

and explains how it applies to Club members’

16

lives. The Club closes with prayer. Finally, Ms.

Fournier distributes treats and Bible verses for

memorization. (Joint Appendix at J1-J2).

Milford also asked the Club to furnish the written mate-

rials that it proposed to use as part of its lessons. (Joint

Appendix at F3-F4).

Milford reviewed the Club’s program and the supple-

mental materials submitted by the Club, just as the gov-

ernment in Bowen reviewed the counseling programs set

up by the religious institutions in that case. Thereafter, it

again denied the Club’s application for the use of school

facilities. (Joint Appendix F6-F7).

In the process of defending its position in litigation,

Milford deposed the Reverend Stephen Fournier. Accord-

ing to the Club, Milford asked “intrusive, probing ques-

tions about religious elements of Club Activities,”

(Petitioners’ Brief at p. 25), thereby implying that Milford

was unable to distinguish between viewpoint and subject

matter without deposing the Reverend. However, the

facts of this case do not bear out that claim.

It is undeniable that Reverend Fournier’s deposition

testimony amplified the details of the Club’s proposed

use of school facilities above and beyond the information

that the Club initially supplied on the application form.

For example, the Reverend Fournier admitted in his

deposition that 6-12 year olds who attend Club meeting

are invited by their instructor, in this case Darlene Four-

nier, to “come to know Jesus Christ as their Savior” (Joint

Appendix at P69) and that the invitation is “offered to the

class as a whole .. . ” (joint Appendix at P71).

17

However, to the extent that Reverend Fournier’s

deposition testimony supplied the courts below with any

hindsight, the lesson of that hindsight is that Milford got

it right the first time. Milford did not need to depose the

Reverend Fournier to ascertain that the Club intended to

engage in religious worship and instruction. Milford was

able to determine from an examination of the application

form and from a minimally intrusive request for, and

examination of, additional information supplied by the

Club, that the Club’s proposed use of school facilities

violated district policy against using school facilities for

religious worship and religious instruction.

The Club’s argument that Milford cannot distinguish

between religious worship or religious instruction vis-

a-vis a religious viewpoint on a secular theme without

unconstitutionally entangling itself with religion is sim-

ply an extension of the Club’s argument that it is difficult

if not impossible for Milford to make this distinction at

all. Under this reasoning, the only way for Milford to

disentangle itself from religion would be to disengage

from the process of inquiry altogether whenever the

applicant proposes to present a religious viewpoint,

which would elevate religion to a sacrosanct status in

Milford’s limited public forum.

No such result is required under the facts of this case,

because Milford did not excessively entangle itself with

religion simply by asking the Club to describe its

intended use of school facilities and to supply additional

information elaborating on its intentions. The inquiry

engaged in was limited to that which was necessary to

preserve the boundaries of Milford’s limited public

forum.

18

CONCLUSION

Milford’s exclusion of religious worship and reli-

gious instruction from the range of permissible uses of

school facilities by outside groups is constitutionally per-

missible, because it is reasonable in light of the purpose

served by the schoolhouse as a limited public forum, and

viewpoint neutral. Even if this court finds that Milford

engaged in viewpoint discrimination by denying the Club

access to its limited public forum for the purpose of

engaging in religious worship and religious instruction,

Milford had a compelling justification for excluding the

Club’s activities based on Establishment Clause concerns.

Petitioners’ argument that Milford excessively entan-

gles itself with religion by making a limited inquiry into

each applicant’s proposed use of school facilities is

wholly without merit.

Therefore, the amicus respectfully submits that the

judgment of the U.S. Court of Appeals for the Second

Circuit should be affirmed.

Respectfully submitted,

Jay Worona

Counsel of Record

PrLar SOKOL

JoHN A. MILLER

New York State SCHOOL

Boarps AssOciATION, INC.

119 Washington Avenue

Albany, New York 12210-2292

(518) 465-3474

Counsel for Amicus Curiae

January 11, 2001