Docket No. 99-2036

FIRST AMENDMENT
Can a Religious Viewpoint be Distinguished from Religious Worship?

by Douglas W. Kmiec
Douglas W. Kmiec holds the Caruso Chair and is Professor of Constitutional Law at Pepperdine University in Malibu, Calif. He is a former Assistant Attorney General (Office of Legal Counsel, U.S. Department of Justice) and co-author with Stephen Presser of Individual Rights and The American Constitution (Anderson with 2000-01 supplement).

Case at a Glance
Voluntary religious clubs have a right to equal access to public facilities at the high school and college level. Milford Central School denies that this principle carries over to the elementary school level when the student activity is highly religious. The Second Circuit agreed, voting 2-1 to uphold the school’s decision to bar a Christian youth group from using its facilities after school hours. The majority cited the establishment clause; the dissenting judge -- noting that the school granted access to other groups such as the Boy Scouts -- cited the free speech clause.

Argument Date: February 28, 2001
From: The Second Circuit

Issues
Is a K-12 public school that opens its doors to after-school activities that "promote the morals of children" required by the establishment clause to exclude student activities that are "too religious"?

Do either the free speech clause or the free exercise clause preclude a K-12 public school from excluding student speech activity based upon an assessment of its religious content?

Facts
Milford Central School is a public school district in upstate New York. It consists of a single school housing all grades K-12. Milford allows its facilities to be used after school hours for a host of activities, but not for religious purposes. Darleen Fournier, the adult leader of the Good News Club, asked to use Milford’s facilities after school in order to develop moral values through the use of Bible stories, games, scripture, and songs. The Club is open to "children of all faiths” and any student may attend with written parental permission. Notwithstanding, Milford's superintendent denied the Club’s request on the supposition that its activity was the equivalent of religious worship.

The Club initially had the superintendent’s decision enjoined, but ultimately both the district court and a divided panel of the Second Circuit sustained the exclusion of the Club. 202 F. 3d 502 (2d Cir. 2000).

Judge Miner for the majority reasoned that while it would be wrong to exclude a voluntary student organization for teaching moral values from a "religious perspective," Milford must exclude any club if its adult leader and students become involved with "impermissible religious instruction." Dissenting Judge Jacobs thought that "when the subject matter is morals and character, it is quixotic to attempt a distinction between religious viewpoints and religious subject matters."

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