The Editors

WHEN ROBERT KENNEDY was attorney general of the United States, he and his family frequently attended Sunday Mass in the auditorium of a large public high school in Arlington, Va. The local parish was newly created, and Virginia saw no problems in renting the auditorium to the parish while its new church was being built.

At night and on weekends, the use of public school facilities for religious instruction and worship is common in many states. No Supreme Court decision is directly on point, but several lower courts have held that once a public school makes its facilities available to a large variety of organizations, the school cannot exclude religious organizations because of their message.

The State of New York, however, has persistently tried to ban any use of public school facilities for religious purposes. New York had to mitigate this policy somewhat after the U.S. Supreme Court upheld the constitutionality of the Equal Access Act in the Mergens decision of 1990. This federal law requires public high schools to give student religious clubs the same access to school facilities as other student organizations that are not curriculum-related. Schools may escape this law only by renouncing all federal financial assistance.

In 1993 New York had to modify its policy much more substantially after the U.S. Supreme Court’s decision in the Lamb’s Chapel case. The school district in Center Moriches on Long Island had opened the school auditoriums for after-class use by a wide variety of nonprofit organizations. Lamb’s Chapel applied for permission to use an auditorium for a showing of six films about family values. The school district denied the request solely because the films had a religious perspective. The Supreme Court held that the school district had violated freedom of speech by discriminating on the basis of viewpoint.

New York then changed its policy so that public schools could permit organizations to discuss public issues from a religious as well as a secular point of view. State law, however, continued to ban the use of public school facilities for worship and religious instruction.

On June 11, 2001, the Supreme Court held that New York’s flat ban still violated freedom of speech. A public elementary school in Milford, N.Y., had long permitted various organizations to use its facilities immediately after the end of regular classes. These organizations included the Boy Scouts, Girl Scouts and 4-H clubs. The Good News Club, a fundamentalist Christian organization, applied for similar use of the same facilities. The school refused because the club intended to use the facilities for religious instruction and worship.

The club sued, but lost when the trial judge granted the school’s motion for summary judgment. This ruling was affirmed by the U.S. Court of Appeals for the Second Circuitthe same court that the Supreme Court had reversed in the Lamb’s Chapel case. Once again the Supreme Court reversed the Second Circuit, holding that the reasoning in Lamb’s Chapel applied fully to the Milford public school and the Good News Club. The school was letting other organizations promote good morals among elementary school children, but was excluding the Good News Club solely because of the religious content of its program.

Five members of the Supreme Court strongly rejected the Second Circuit’s attempt to distinguish between religious instruction/worship and discussion of public issues from a religious point of view. A sixth justice agreed that the trial court should not have summarily dismissed the suit.

Although the Second Circuit (and the State of New York) will now have to abandon the distinction that the Supreme Court has rejected, the Milford public school district still has a long-shot chance to win. Because the Supreme Court dealt only with the summary judgment issue, the school could still insist on a trial, hoping somehow to show that specific circumstances justified the school’s denial of the application by the Good News Club.

Not surprisingly, the Supreme Court’s decision has prompted harsh reactions by some secularist liberal organizations. They have not been disturbed by the character-building activities of organizations like the Boy Scouts, but they are appalled by the Good News Club victory. How could the court possibly hold that freedom of speech protects fundamentalist Christian organizations that want to use public school facilities immediately after class in order to indoctrinate first- to sixth-grade students in the belief that Jesus Christ is their Lord and Savior?

The answer is that the Supreme Court is no longer willing to prolong the virtual exclusion of religion from after-class activities in public school facilities that has been embedded in the laws of states like New York. Secularist liberal organizations are often the champions of free speech. As they usually recognize, however, this is a freedom they have to shareeven, as the Supreme Court has now reminded them, in after-class use of the facilities of elementary public schools.

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